S  OJXu^  f/rMiju^ 


THE  EVOLUTION  OF 
GOVERNMENTS  AND  LAWS 


EXHIBITING  THE   GOVERNMENTAL   STRUCTURES 
OF     ANCIENT     AND      MODERN     STATES,     THEIR 
GROWTH      AND      DECAY     AND     THE      LEADING 
PRINCIPLES  OF  THEIR  LAWS 


BY 

STEPHEN  HALEY  ALLEN 


"Quis  custodiet  ipsos  custodesF'* 
*  'Mens,  et  animus,  et  consilium    et  sententia  civitatis,  posita  est  in  legibus 


PRINCETON    UNIVERSITY  PRESS 

PRINCETON 

Sales  Agents  for  the  Author 


Copyright,  1916,  by 
Stephen  Haley  Allen 


Published  August,  1916 


CONTENTS 

INTRODUCTION.— Parental  Authority.  Public  Reg- 
ulation OF  Private  Morals.  Public  Regulation  of 
THE  Family.  Crimes  and  Punishments.  Legislative 
Morality.  Legislative  Expedients.  Judicial  Func- 
tions. Executive  Functions.  Checks  and  Bal- 
ances OF  Governmental  Powers.  General  Pur- 
poses OF  Government. 

chapter 


I. 

Unorganized  Tribes. 

II. 

Tribal  Organizations  and  Simple  Despotisms. 

III. 

Pacific  Islands. 

IV. 

Mexico. 

V. 

Peru. 

VI. 

Egypt. 

VII. 

Chaldea,  Babylonia,  Judea  and  Persia. 

VIII. 

Arabia. 

IX. 

India. 

X. 

China. 

XI. 

Japan.  "-                                                   ;  ' 

XII. 

Turkey. 

XIIL 

Greece. 

XIV. 

Rome. 

XV. 

Mediaeval  Europe. 

XVI. 

Russia.—-" 

XVII. 

Italy. 

XVIII. 

Spain  and  Portugal. 

XIX. 

Denmark,  Sweden  and  Norway. 

XX. 

Germany,  Austria,  Hungary  and  Poland. 

XXI. 

Holland  and  Belgium. 

XXII. 

Switzerland. 

XXIII. 

France. 

XXIV. 

The  British  Empire. 

o  /I  *^  o  :  <(^ 


XXV.  United  States. 
XXVI.  Modern  Mexico,  Central  and  South  American 
States. 

GENERALIZATIONS.— Poverty  of  History.  Methods 
OF  Acquiring  and  Conferring  Political  Power. 
Methods  of  and  Principles  Applicable  to  the  Se- 
lection OF  Public  Officers.  Direct  Legislation. 
Initiative  and  Referendum.  Changes  in  the  Forms 
AND  Functions  of  Governments.  Methods  of  Origi- 
nating Laws.  Purposes  of  Laws  and  Motives 
Prompting  their  Enactment.  Punishment.  Taxa- 
tion. Personal  Status.  Family  Relations.  Land 
Laws.    Inheritance.    Contracts.    Combinations. 

APPENDIX 
Code  of  Hammurabi. — Babylon. 
Laws  of  XII  Tables. — Rome. 
Code  of  Manu. — India. 
Institutes  of  Justinian. 
Penal  Code  of  China. 
Civil  Code  of  France. 
'Civil  Code  of  Germany. 
Magna  Charta. — England. 
Constitution  of  the  United  States. 


INTRODUCTION 

The  wide  research  and  long  study  preceding  and  attending 
the  preparation  of  this  work  have  been  prosecuted  for  the 
purpose  of  extracting  from  the  recorded  experiences  of  the 
various  people  of  the  earth,  in  the  governments  they  have 
had  and  the  laws  under  which  they  have  lived,  such  broad  and 
general  principles  as  may  be  helpful  in  the  work  of  framing 
constitutions  and  formulating  laws.  Neither  government- 
building  nor  law-making  is  a  science.  That  the  moral  law 
has  some  force  and  application  is  generally  admitted,  but 
that  it  may  be  violated,  when  deemed  expedient  to  do  so,  is 
constantly  asserted  in  practice.  What  is  the  moral  law,  and 
where  may  its  precepts  be  found?  Perhaps  most  men  will 
answer,  in  the  sacred  books.  But  it  may  again  be  asked, 
what  books  are  sacred?  To  this  the  Brahman  will  unhesi- 
tatingly answer,  the  Vedas  and  the  code  of  Manu;  the  Bud- 
dhist, the  Greater  or  the  Lesser  Vehicle,  according  to  his  sect ; 
the  Mohammedan,  the  Koran;  the  Jew,  the  Talmud;  the  Par- 
see,  the  Zend-Avesta;  the  Christian,  the  Bible,  and  so  on 
through  less  widely  accepted  codes.  While  much  of  agree- 
ment can  be  found  in  all  of  them,  there  are  direct  antagon- 
isms of  the  utmost  importance. 

Mohammed  taught  war  and  commanded  the  propagation 
of  the  word  by  the  sword.  Christ  forbade  it,  yet  is  recorded 
as  having  said.  'T  came  not  to  send  peace  but  a  sword." 
Manu  taught  caste  and  inequality  among  men ;  Buddha  equal- 
ity. All  the  Asiatic  codes,  including  the  Christian,  counten- 
ance slavery,  which  the  moral  sense  of  Europe  and  America 
now  condemns.  All  nations  resort  to  war;  yet  its  immorality 
is  its  most  apparent  characteristic.  Every  normal  person 
feels  a  capacity  for  determining  the  moral  quality  of  the  acts 
of  himself  and  of  others,  yet  varying  capacity,  education  and 
surroundings  lead  to  diverse  judgments  on  many  subjects.  A 
definition  of  the  moral  law  as  the  rule  determining  right  from 


2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

wrong  merely  leaves  the  question  unanswered.  Nevertheless 
it  would  seem  self-evident  that  there  are  moral  principles  of 
universal  application,  binding  alike  on  all  men,  by  which  the 
quality  of  human  conduct  may  be  tested.  They  attend  and 
inhere  in  our  existence.  The  fact  that  any  such  principle  is 
not  generally  perceived  or  followed  does  not  prove  its  non- 
existence. 

Many  natural  laws  have  remained  concealed  from  man 
through  all  the  ages,  and  moral  laws  are  natural  laws.  The 
progress  of  the  age  is  measured  by  the  discovery  and  applica- 
tion of  natural  laws  to  science  and  art.  Perhaps  a  fair  defi- 
nition of  the  moral  law  would  be,  the  Divine,  the  natural  law, 
which  fixes  the  duty  of  man  to  himself,  to  other  human  beings 
and  to  all  living  creatures.  A  man  living  in  complete  isola- 
tion from  all  other  human  beings  would  owe  himself  the 
duty  to  appropriate  to  himself  everything  that  would  con- 
tribute to  his  welfare,  comfort  and  highest  development,  tak- 
ing food,  clothing  and  shelter  wherever  he  could  get  the  best. 
But  civilized  man  does  not  live  in  isolation.  His  duty  to 
himself  continues,  but  always  subject  to  the  limitations  re- 
sulting from  the  rights  of  others.  A  duty  and  corresponding 
right  attaches  to  each  one  to  provide  for  himself  and  the 
right  of  each  becomes  a  limitation  on  that  of  every  other 
one.  This  conflict  of  interest  and  loss  of  right  to  freely 
appropriate  whatever  is  at  hand  is  more  than  compensated  by 
the  advantages  of  combined  effort  and  mutual  help.  It  is 
clear  that  the  moral  law  applies  to  all  alike  and  commands  a 
just  sharing  among  the  people  of  all  the  things  that  nature 
provides  as  well  as  of  the  fruits  of  their  united  efforts.  In  the 
division  of  the  bounties  of  nature  equality  appears  to  be  the 
natural  law,  but  equality  of  opportunity  to  take  every  kind 
of  natural  product  and  resource  in  a  densely  peopled  world  is 
impossible.  Human  activities  are  largely  applied  to  the  search 
for  and  gathering  of  useful  things  from  the  surface  of  the 
earth  and  the  mines  beneath.  The  value  of  the  things  gained 
by  these  activities  depends  in  great  measure  on  the  labor  ex- 
pended in  acquiring  them.  There  is  difficulty  in  separating 
the  added  labor  value  from  that  of  the  thing  as  it  was  before 


INTRODUCTION  3 

man  touched  it.  Combination  of  effort  for  common  ends 
implies  the  assignment  to  each  of  a  special  part  of  the  work. 
Specialization  requires  the  assignment  to  each  of  the  task 
for  which  he  is  best  qualified.  Division  of  labor  calls  for 
the  exchange  of  products.  Advancing  civilization  is  attended 
by  increased  combination  of  effort,  division  of  labor  and  spe- 
cialization of  occupation.  Amid  the  complexity  of  modern 
business  conditions  the  applicability  of  fundamental  moral 
principles  to  the  rights  and  duties  of  each  member  of  society 
is  obscured  and  often  lost  to  view.  In  the  division  of  labor 
inequalities  of  burden  inevitably  arise.  In  the  distribution  of 
the  benefits  of  combined  effort  equality  of  share  to  each  is 
difficult  of  attainment,  if  not  impossible.  The  necessity  for 
direction  and  leadership  implies  a  degree  of  mastery,  which 
may  be  carried  so  far  as  to  become  oppression.  Out  of  a 
disregard  of  duty  and  of  the  rights  of  others  come  oppres- 
sion, strife  and  crime.  In  an  ideal  state  the  law  would  op- 
pose its  force  to  all  unsocial  and  immoral  conduct.  To  give 
positive  sanction  to  conduct  that  violates  ethical  principles  is 
inexcusable.  Practical  men  do  not  expect  an  ideal  system  of 
laws  completely  enforced,  but  a  nearer  and  nearer  approxi- 
mation to  the  moral  law. 

Let  us  notice  a  few  of  the  customs  that  have  long  been 
sanctioned  by  the  laws  of  great  nations.  In  China  the  in- 
feriority and  servitude  of  the  females  to  the  males  lies  at 
the  foundation  of  the  whole  social  system.  The  wife  and 
daughter  may  be  abused,  overworked  and  mistreated  by  the 
husband  and  father  almost  at  will.  The  power  of  the  father 
over  his  sons  is  also  very  great.  Prior  to  the  late  revolution 
the  Imperial  Clan  and  descendants  of  Confucius  constituted 
privileged  classes  and  were  supported  from  the  taxes  gath-. 
ered  from  the  toiling  multitude. 

In  India,  from  remote  ages,  the  rigid  rules  of  caste  have 
kept  the  lower  orders  in  enforced  ignorance  and  servitude  to 
the  ruling  classes.  Denial  of  the  right  to  engage  in  any  busi- 
ness or  calling,  other  than  those  assigned  to  his  caste,  has 
deprived  the  members  of  all  castes  of  that  personal  freedom 
of  effort  so  essential  to  high  development.     Rank  injustice 


4       EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  disregard  of  natural  rights  lie  at  the  base  of  the  whole 
system. 

In  Mohammedan  countries  the  Koran's  precepts  allow  poly- 
gamy, and  far  worse  than  this,  command  the  propagation  of 
religion  by  war,  the  most  immoral  of  all  concerted  efforts  of 
men.  The  errors  and  falsehoods  of  the  Koran  are  taught  as 
divine  revelation,  and  all  inquiry  tending  to  replace  them  with 
truth  is  stifled. 

Throughout  all  the  history  of  Rome  slavery  was  recognized 
and  the  machinery  of  the  government  was  employed  to  en- 
force the  dominion  of  the  masters.  Much  of  the  learning  of 
the  great  jurists  consists  in  rules  governing  the  relations  of 
masters  and  their  slaves,  and  determining  the  personal  status 
of  persons  as  citizens,  coloni,  freedmen  and  slaves.  Even  in 
our  own  land,  within  the  memory  of  the  writer  and  those  of 
his  generation,  slavery  was  the  most  important  institution  in 
nearly  one  half  of  the  Republic.  No  law  can  be  a  greater 
departure  from  the  moral  law  than  that  which  sanctions 
slavery  and  allows  one  man  to  compel  another  to  serve  him 
according  to  his  arbitrary  will  and  take  all  the  proceeds  of 
his  labor  to  use  as  he  pleases.  Nothing  can  better  illustrate 
the  tendency  to  depart  from  the  moral  law  in  framing  human 
laws  than  the  history  of  the  law  of  slavery.  The  feudal  sys- 
tem of  land  tenure  after  the  decline  of  the  Roman  Empire 
worked  out  results  similar  to  slavery. 

Without  stopping  at  this  time  to  apply  moral  tests  to  the 
leading  principles  of  modern  law  in  Europe  and  America, 
let  us  consider  what  influences  produced  the  laws  above  men- 
tioned. Clearly  the  authors  of  such  laws  were  not  guided  in 
their  work  by  any  moral  principles,  for  the  injustice  of  them 
is  obvious.  The  universal  motive  has  been  advantage  for 
the  ruling  class,  and  the  excuse  for  taking  the  advantage  has 
been  expediency  or  necessity.  During  periods  of  war  or  civil 
discord  men  seek  to  assure  their  own  safety  by  the  destruction 
of  their  enemies.  The  victors  in  the  contest  seldom  give  nice 
consideration  to  moral  rules  in  imposing  term  on  the  van- 
quished. Primitive  tribes  either  kill  or  enslave  their  captives. 
Slavery  has  its  root  in  war.     Greeks  and  Romans,  though  ad- 


INTRODUCTION  5 

mining  the  immorality  of  slavery,  enslaved  their  captives  and 
always  maintained  the  dominion  of  the  masters  by  law.  In 
the  conquest  of  India  by  the  Aryan  invaders  the  subjugated 
natives  were  assigned  to  a  servile  class.  The  system  of  castes 
arose  from  the  organization  of  the  priestly  and  military  orders 
and  the  enslavement  of  the  native  races.  The  victor  in  a 
fierce  conflict  often  considered  himself  humane  to  accord  life 
to  his  enemy  on  terms  of  perpetual  service.  The  institution 
of  slavery  was  never  originated  by  a  deliberative  body  of 
law-makers,  nor  by  any  great  autocrat  acting  merely  as  a  law- 
giver. Where  the  institution  has  existed,  law-makers  have 
undertaken  to  apply  some  moral  rules  to  its  incidents,  leav- 
ing its  fundamental  vice  undisturbed.  We  shall  find  as  we 
proceed  that  the  habit  of  accepting  immoral  systems  and  then 
attempting  to  apply  moral  principles  to  their  incidents  is  uni- 
versal. The  enslavement  of  the  recently  overpowered  and 
disarmed  enemy  appears  in  very  different  light  from  that  of 
the  child  born  in  slavery.  In  the  latter  case  the  law  of  in- 
heritance of  condition  is  required  to  pass  mastery  from  the 
captor  to  his  son  and  the  status  of  a  slave  from  the  captive 
to  his  child. 

Under  the  feudal  system  conquest  of  land  carried  with  it 
rulership  over  the  occupants  of  it,  and  a  theory  of  ownership 
of  the  face  of  the  earth  was  made  to  give  in  effect  ownership 
of  the  people  inhabiting  it.  This  mastery  was  mitigated  in 
time  by  rules  governing  the  relations  of  lords  and  tenants 
and  out  of  these  rules  came  the  early  English  laws  of  real 
property.  It  cannot  be  truthfully  said  that  the  idea  of  abso- 
lute ownership  of  the  face  of  the  earth  is  an  outgrowth  of 
war.  It  seems  rather  to  have  arisen  from  continued  occu- 
pancy by  successive  generations  of  families  and  tribes.  The  . 
influence  of  habit,  education  and  environment,  in  moulding 
opinions  on  all  questions  of  political  science,  is  quite  as 
marked  as  in  religion,  fashion  and  industrial  habits.  Noth- 
ing is  more  natural  or  more  common  than  to  base  reasoning 
on  the  fundamental  principles  of  existing  institutions,  and  to 
assume  that  the  existing  system  is  in  its  main  features  a 
natural   and  necessary  one.     Thus  in   Roman  jurisprudence 


6       EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

patria  potestaSj  slavery  and  inheritance  of  personal  status  and 
of  property  were  foundations  which  endured  a  thousand  years. 
So  also  in  India  caste  is  the  key  to  all  judicial  research,  and  in 
China  paternal  authority  and  filial  piety.  Following  the 
American  revolution  individual  liberty  and  restriction  of  the 
powers  of  government  were  the  leading  ideas  of  the  revolu- 
tionists concerning  social  organization.  The  founders  of  the 
United  States  were  close  students  of  the  relations  of  the  state 
to  its  citizens,  but  did  not  concern  themselves  deeply  with  the 
laws  governing  the  relations  of  man  to  man,  or  attempt  radi- 
cal changes  in  the  laws  relating  to  property.  Even  so  immoral 
a  business  as  the  trade  in  African  slaves  was  not  prohibited  at 
once,  and  slavery  was  recognized  as  lawful  though  immoral. 
Freedom  from  the  unnecessary  restraints  of  government  was 
their  great  desideratum.  The  word  liberty  is  given  a  great 
variety  of  meanings.  As  expressive  of  the  freedom  of  action 
which  is  permissible  to  a  person  it  must  necessarily  mean  such 
freedom  as  is  compatible  with  equal  freedom  for  all  others. 
Where  many  persons  live  in  close  proximity  to  each  other, 
complete  freedom  of  action  in  each  with  full  protection 
against  the  acts  of  others  is  impossible.  The  moral  law  im- 
poses its  restraints,  and  not  only  denies  all  liberty  to  wrong 
or  injure  others,  but  enjoins  positive  duties  toward  them  in 
endless  variety  resulting  from  the  interdependence  of  man 
and  his  fellows.  No  system  of  laws  has  ever  yet  been  worked 
out  on  even  a  professed  adherence  to  fundamental  moral 
principles. 

Most  of  the  confusion  of  thought  and  defective  reasoning 
of  those  who  speak  and  write  on  the  subject  of  political  science 
arise  from  a  failure  to  observe  the  difference  between  ques- 
tions of  morality  and  questions  of  expediency  and  the  limi- 
tations on  expediency  imposed  by  morality.  While  it  is 
impossible  to  draw  sharp  lines  of  separation,  it  is  not  difficult 
to  perceive  that  each  has  its  legitimate  field,  and  that  the 
science  of  law,  when  law-making  becomes  a  science,  must  rest 
on  the  application  of  moral  principles  to  the  determination  of 
the  rights  of  men  and  their  conduct  in  life  and  an  intelligent 
understanding  of  the  principles  which  afifect  the  selection  of 


INTRODUCTION  7 

expedients  for  the  accomplishment  of  moral  ends.  Real 
progress  and  improvement  in  social  conditions  follow  the 
promulgation  of  the  moral  law  in  such  form  that  it  is  learned, 
understood  and  accepted  as  authentic  by  the  multitude.  Most 
great  teachers  of  it  have  given  their  rules^  a  religious  sanction. 
It  is  entirely  logical  to  do  so,  for  the  moral  laws  which  should 
govern  the  relations  of  men  must  emanate  from  the  overruling 
power  that  gives  life.  Moses,  Confucius,  Gautama,  Christ 
and  Mohammed,  have  each  left  a  deeper  and  more  enduring 
impression  on  the  world  than  all  the  conquerors  who  have 
terrorized  the  earth  combined.  The  fact  that  error  is  com- 
bined with  truth  in  some  of  their  teachings  does  not  disprove 
the  divinity  of  the  moral  law.  It  may  prove  the  existence  of 
the  human  element  in  the  teacher  and  his  liability  to  err.  The 
work  of  these  great  teachers  has  been  truly  constructive,  while 
that  of  the  great  warriors  has  been  the  organization  of  forces 
and  the  use  of  them  for  purposes  of  destruction  and  mastery. 
Simple  moral  truths  of  universal  application  lie  at  the  base 
of  every  great  system  of  religion.  The  beliefs  and  ceremonials 
are  the  shell  and  husks,  ostensibly  designed  to  protect  and 
nourish  the  kernels  of  truth,  yet  in  fact  concealing  them.  It 
is  easily  perceived  that  moral  principles  are  eternal  truths, 
established  by  and  according  with  the  power  that  rules  the 
universe.  They  are  the  same  everywhere  and  under  all  cir- 
cumstances. The  imaginings  as  to  the  unknowable,  the 
priestly  establishments,  the  creeds  and  religious  ceremonials, 
human  inventions,  are  changed  and  moulded  to  suit  changing 
tastes  and  inclinations. 

Departure  from  the  moral  law  in  human  conduct  is  due 
either  to  unreasoning  impulse  or  views  of  expediency,  or  both 
combined.  The  rules  of  morality  and  expediency  must  of 
necessity  be  identical  as  to  acts  or  conduct  affecting  the  actor 
alone,  for  it  is  right  to  do  what  best  promotes  his  permanent 
welfare,  and  it  is  also  expedient.  The  departure  from  the 
true  course  in  such  matters  is  usually  due  to  a  desire  for  some 
excessive  temporary  pleasure,  to  be  compensated  later  by  cor- 
responding pain  or  depression,  or  the  gratification  of  some 
particular   desire   at   the   expense   of   others   more   laudable. 


8       EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

There  is  full  liberty  of  choice  of  food,  clothing,  ornament, 
labor,  recreations,  fields  of  inquiry,  aims  in  life,  ideals,  and 
of  every  activity  so  far  as  each  of  them  is  equally  consistent 
with  human  welfare. 

In  conduct  affecting  others  expediency  is  the  justification 
which  the  wrongdoer  makes  to  himself  for  the  greatest  de- 
parture from  moral  rectitude.  Murder,  robbery,  theft,  forg- 
ery and  every  other  crime  and  intentional  wrong  to  others, 
have  their  root  in  a  belief  or  impression  of  the  expediency  of 
the  act.  Expediency  is  the  justification  claimed  for  all  crafty 
schemes  through  which  men  gain  riches  and  power  to  the 
detriment  of  others.  Expediency  is  the  excuse  for  falsehood 
and  cowardly  neglect  of  duty.  The  inability  of  a  man  to 
protect  himself  and  those  dependent  on  him  by  strictly  moral 
means  makes  room  for  resort  to  immoral  acts,  deemed  neces- 
sary. It  is  immoral  to  kill  or  maim  another,  yet  deemed 
justifiable  in  self-defense  or  to  protect  one's  family.  Though 
expediency  prompts  to  all  kinds  of  immoral  conduct,  it  has  its 
legitimate  field  of  vast  extent.  There  are  many  different  ways 
of  accomplishing  a  desirable  end  by  moral  methods.  The 
choice  and  use  of  expedients  are  the  most  common  employ- 
ments of  the  mind.  The  moral  law  fixes  limitations. 
Expediency  may  freely  lead  in  every  path  that  touches  no  for- 
bidden ground.  The  diversity  of  human  accomplishments  is 
due  to  choice  of  expedients  and  ends  to  be  accomplished. 
Choice  and  use  of  moral  expedients  for  moral  ends  are  the  true 
field  of  liberty.  Choice  of  food,  clothing,  habitation,  furnish- 
ings, labor,  repose,  recreation,  amusement,  associates,  literature 
and  moral  purposes  to  be  accomplished,  affords  an  illimit- 
able field  for  selection  of  activities.  One  may  freely  follow  the 
dictates  of  his  own  tastes  and  inclinations  wherever  full  lib- 
erty of  action  is  permissible. 

Parental  Authority 

Whatever  the  social  state,  from  the  lowest  savages  to  the 
most  cultured  nations,  parental  authority  over  young  children 
is  recognized  everywhere.  The  parental  relation  is  established 
by  the  divine  law  of  reproduction.    Among  the  most  degraded 


INTRODUCTION  9 

savages  the  relation  of  the  mother  to  her  child  is  obvious, 
while  that  of  the  father  is  often  obscure  or  wholly  unknown. 
All  the  burdens  connected  with  rearing  the  young  are  borne 
by  the  mothers,  who  are  often  enslaved  and  oppressed  by  the 
males  with  whom  they  come  in  contact.  The  first  well  defined 
step  in  the  advancement  of  civilization  is  the  establishment  of 
family  relations  with  fathers  recognizing  definite  relations  to 
their  wives  and  children.  As  society  improves,  the  purity  and 
strength  of  domestic  ties  increase.  The  happiness  of  each 
person  and  the  welfare  of  the  state  are  dependent  everywhere 
on  the  measure  of  love,  unselfishness  and  devotion  to  duty 
prevailing  in  the  homes.  To  rear  and  protect  their  offspring, 
parents  must  direct,  restrain  and  instruct  them.  The  ruler- 
ship  is  arbitrary  in  the  sense  that  the  parent  acts  according 
to  circumstances  on  his  own  judgment  and  without  restraint 
from  fixed  rules.  The  protection  of  the  child  from  mistreat- 
ment lies  in  the  love  of  the  parent,  who  finds  joy  in  the 
comfort  and  happiness  of  the  child  and  pain  in  its  suffering. 
While  anger  and  hatred  are  sometimes  exhibited  by  par- 
ents, pity  and  love  almost  invariably  temper  the  blows  and 
quickly  restore  the  bond  of  sympathy.  No  other  shield  against 
harm  could  possibly  be  found  of  anything  like  the  strength 
and  efficiency  of  parental  love.  While  parents  have  full 
power  to  direct  and  restrain,  they  must  of  necessity  accord  to 
their  children  an  ever  increasing  measure  of  liberty  of  action 
commensurate  with  their  expanding  strength  and  mental 
powers.  Lessons  in  self-reliance  are  necessary  and  may  be 
taught  to  the  very  young  with  advantage.  It  is  often  better 
to  let  the  little  child  suffer  the  punishment  nature  imposes  for 
its  act  than  to  restrain  it.  The  pain  caused  by  heat  and  cold 
can  only  be  clearly  understood  by  experiencing  it.  Pain  is  a 
sentinel  that  warns  of  immediate  danger,  and  through  some 
pain  the  child  must  learn  what  to  shun.  What  dangers  and 
sufferings  the  child  should  be  subjected  to  must  depend  in 
great  measure  on  the  care  and  instruction  the  parents  can  give 
it.  The  child  has  its  rights  and  is  entitled  to  its  due  measure 
of  liberty.  Of  the  limitations  of  these  the  parents  of  necessity 
must  judge  from  time  to  time,  till  the  capacity  of  the  child  to 


10  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

govern  himself  is  approximately  equal  to  that  of  the  parent 
to  govern  him.  Nature  fails  to  indicate  a  definite  size  or  age 
at  which  this  capacity  first  comes  into  existence.  In  Rome 
the  power  of  the  father  over  his  son  continued  throughout  life 
and  over  his  daughter  so  long  as  she  remained  under  his  hand, 
that  is  till  she  married  and  was  transferred  to  the  family  of 
her  husband.  The  patriarchal  system  was  a  very  natural  de- 
\elopment  in  those  parts  of  Asia  which  were  inhabited  by  a 
settled  population,  living  under  peaceful  conditions  and  sup- 
porting themselves  from  agriculture  or  pastoral  pursuits.  The 
father  of  the  family  was  the  natural  head  of  it,  and  the  family 
included  grandchildren,  as  well  as  children,  and  all  other 
members  of  the  household.  Polygamy  in  places  greatly  ex- 
tended the  membership  of  the  family  and  made  the  head  of  it 
a  ruler  over  a  community.  To  people  reared  under  such  con- 
ditions a  paternal  government  would  appear  to  be  the  only 
natural  one.  Among  savage  tribes  like  the  American  Indians 
and  the  lower  Africans  frequent  wars  disrupted  families. 
The  leadership  of  war  parties  was  taken  by  the  strong  and 
vigorous  young  men,  and  their  feats  in  arms  gave  them  in- 
fluence in  the  councils  of  the  tribe.  The  elders  were  listened 
to  in  council,  but  lacked  the  requisite  strength  and  endurance 
for  commanding  war  parties.  The  organization  of  such  war- 
like tribes  was  democratic,  and  combinations  of  the  Indian 
tribes  mostly  took  the  form  of  confederacies. 

In  the  Asiatic  monarchies  the  king  assumed  authority  over 
all  the  people  similar  to  that  exercised  by  the  father  over  his 
family.  This  power  was  arbitrary  and  without  limitation. 
The  theory  of  such  a  government  is  false,  because  the  love, 
which  is  such  an  active  and  constant  monitor  in  the  home  and 
furnishes  such  a  safeguard  against  oppression,  is  wanting  in 
the  kingdom.  The  love  of  even  the  best  of  kings  for  their 
subjects  is  largely  theoretical,  and  in  the  nature  of  things 
cannot  be  the  same  in  quality  as  that  of  the  father  for  his 
own  family.  The  restraining  force  being  absent,  tyranny  of 
course  results.  In  a  populous  state  warm  sympathy  for  and 
full  appreciation  of  the  peculiarities  of  each  citizen  by  the 
sovereign  is  impossible. 


INTRODUCTION  ii 

Public  Regulation  of  Private  Morals 
Ought  the  state  to  concern  itself  with  private  morals?  That 
the  state,  which  is  but  the  aggregate  of  all  the  people  in  it, 
is  deeply  interested  in  the  morals  of  every  private  person  in 
it  is  clear,  but  that  the  public  can  interfere  with  the  conduct 
of  a  person  which  concerns  him  alone  with  advantage  either 
to  him  or  to  the  state  is  not  so  evident.  The  Greeks  deemed 
the  culture  of  physical  strength  and  beauty  of  form  a  matter 
of  public  concern  as  well  as  mental  and  moral  training.  The 
code  of  Manu  deals  minutely  with  many  habits  of  body  and 
mind  and  private  acts  affecting  the  soul,  and  prescribes  pen- 
ances and  expiations  for  infractions  of  its  rules.  It  seeks  to 
direct  the  soul  in  its  struggle  to  gain  mastery  over  the  body 
and  all  evil  propensities  of  body  and  mind.  Religion  and 
education  are  the  forces  employed  to  guard  against  all  secret 
violations  of  its  commands.  From  early  youth  the  people 
are  taught  that  the  law  is  self-enforcing  and  that  every  in- 
fraction of  it  is  followed  by  certain  and  adequate  punishment. 
In  China  mourning  for  the  dead  is  deemed  a  matter  of  prime 
importance,  and  is  enforced  in  the  prescribed  form  under 
severe  penalties.  While  the  Book  of  Rites  deals  mainly  with 
forms  of  intercourse  between  different  persons,  it  also  en- 
joins many  observances  affecting  the  individual  alone.  Mo- 
hammed strictly  commanded  ablutions,  the  morning  and 
evening  prayer,  and  other  personal  observances  tending  to 
cleanliness  and  health  as  well  as  requiring  the  observance  of 
religious  forms.  The  Church  of  Rome  also  takes  cognizance 
of  private  morals  and  requires  confession  of  secret  sins  and 
imposes  penances  for  the  expiation  of  them.  Other  Christian 
churches  also  deal  with  secret  acts  affecting  the  actor  alone. 
The  prevailing  doctrine  in  America  and  the  more  advanced 
states  of  Europe  is  that  the  citizen  is  accountable  to  himself 
and  the  Supreme  Being  only  for  his  private  morals  and  care 
of  his  personal  welfare.  This  doctrine  is  adopted  both  on  the 
ground  of  rightful  liberty  and  of  the  inexpediency  of  state 
regulation  of  purely  personal  concerns.  It  must  not  be  in- 
ferred however  that  this  non-interference  by  the  government 


12  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

indicates  indifference  on  the  subject,  or  an  entire  lack  of 
public  influence  in  the  direction  of  the  best  private  morality. 
Through  the  public  schools  educational  influences,  potent  and 
far-reaching,  are  brought  to  bear.  By  encouragement  to 
acquire  knowledge,  to  love  truth  and  form  and  follow  high 
ideals,  the  state  leads  rather  than  drives  to  purity  of  private 
morals. 

Public  Regulation  of  the  Family 

Should  the  state  undertake  to  regulate  and  iriiprove  the  re- 
lation of  members  of  the  family  to  each  other?  That  these 
are  of  the  highest  interest  to  the  public  does  not  admit  of 
doubt.  The  citizens  constituting  the  state  are  reared  in  the 
homes  and  started  in  life  with  such  opinions,  habits  and  pur- 
poses as  home  influences  have  produced.  Vicious  and  im- 
moral parents  usually  rear  children  with  similar  character. 
On  the  other  hand  lofty  purposes  and  upright  conduct  are 
best  promoted  Dy  the  lessons  of  the  domestic  fireside.  From 
the  home  atmosphere  of  love,  devotion  to  the  welfare  of  each 
other  and  kindness  toward  all  mankind  radiate  those  warm 
and  vitalizing  influences  that  stimulate  the  growth  of  all  that 
is  good  on  earth.  Viewing  the  importance  of  preventing  the 
propagation  of  evil  and  of  encouraging  the  growth  of  virtue, 
may  the  state  safely  leave  the  homes  to  be  ruled  as  the  mem- 
bers of  the  household  deem  best?  This  presents' the  practical 
question,  where  can  better  influences  be  found  than  those 
which  spring  spontaneously  from  matrimonial  unions.  The 
state  concerns  itself  with  the  foundation  of  the  household  by 
marriage.  Only  in  the  lowest  and  most  degraded  tribes  is 
promiscuous  sexual  intercourse  tolerated.  Though  polygamy 
is  lawful  among  more  than  two-thirds  of  the  people  of  the 
earth,  there  can  be  no  doubt  of  the  superior  morality  of  the 
union  of  the  single  pair.  This  is  indicated  by  the  near  ap- 
proximation in  the  numbers  of  each  sex  born  into  the  world 
and  is  recognized  even  in  the  countries  where  polygamy  is 
allowed,  for  in  them  monogamy  is  the  rule  and  polygamy  the 
exception.  A  few  tribes  allow  plurality  of  husbands,  but  this 
system  is  regarded  with  almost  universal  disfavor. 


IXTRODUCTIOX  13 

There  is  great  diversity  in  marriage  ceremonies,  but  these 
are  of  relatively  small  concern.  It  is  far  more  important  to 
determine  who  may  intermarry.  Restrictions  preventing  the 
lower  classes  from  intermarrying  with  the  higher  are  most 
marked  in  India,  and  are  common  with  the  princely  houses  of 
Europe.  These  are  designed  to  prevent  the  upper  from  being 
contaminated  w.ith  the  lower  orders. 

The  family  being  established  by  lawful  marriage  its  govern- 
ment is  usually  left  almost  entirely  to  its  own  members.  The 
theory  of  domestic  rulership  varies  from  the  patria  potestas 
of  the  Romans,  with  power  of  life  and  death  over  all  mem- 
bers of  the  household,  including  adult  children  and  their 
wives  and  their  offspring,  to  that  of  equal  rights  of  father 
and  mother  over  minor  children  and  complete  emancipation  of 
the  children  at  the  legal  age  of  majority.  The  right  to  punish 
children  is  universally  conceded  to  parents,  subject  in  ad- 
vanced states  to  the  limitation  that  the  punishment  must  not 
be  cruel  or  excessive.  When  it  is  considered  that  the  citizens 
constituting  the  state  are  born  and  reared  in  these  households, 
the  vast  importance  of  domestic  morals  is  apparent.  If  the 
state  can  improve  them  by  regulation  it  is  desirable  to  do  so, 
but  before  the  attempt  is  made  it  must  be  found  that  the 
moral  purposes  of  the  state,  as  an  organized  acting  force,  are 
better  than  those  generally  dominating  in  the  homes.  It 
seems  clear  that  this  cannot  be  safely  asserted,  even  in  the 
best  governed  states,  but  that  the  reverse  is  generally  *true, 
and  that  the  impulses  which  advance  public  standards  origi- 
nate in  the  homes.  This  of  course  is  most  apparent  in  dem- 
ocracies and  republics,  but  domestic  morals  exert  a  profound 
influence,  even  under  the  most  despotic  governments.  In  this 
connection  it  must  be  noticed  that  there  is  as  wide  a  difference 
in  the  character  of  households  as  of  persons.  Virtue  and  all 
noble  impulses  germinate  in  the  homes,  but  so  also  does  much 
vice.  Moral  as  well  as  physical  qualities  usually,  though  not 
universally  pass  by  inheritance  from  parent  to  child.  The 
ancient  Spartans  encouraged  propagation  by  the  strongest 
and  most  perfect  physical  specimens,  and  exposed  the  defec- 
tive infants.     They  however  grossly  underrated  the  factor  of 


14  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

love  and  devotion  of  husband  and  wife  to  each  other,  so  ab- 
sokitely  essential  to  the  highest  development  of  the  moral 
character  of  the  offspring.  Where  husband  and  wife  are 
normally  healthy  physically  and  morally  there  is  little  or  no 
need  of  state  interference  with  their  domestic  affairs,  but 
may  not  society  interfere  and  protect  itself  from  the  conse- 
quences of  those  unions  that  are  productive  of  vicious  and 
defective  children?  Ought  the  criminal,  the  insane  and  the 
imbecile  to  be  allowed  to  marry  and  multiply  their  kind?  No 
intelligent  stock-raiser  allows  the  propagation  of  defectives 
among  his  flocks  and  herds.  He  takes  the  utmost  care  to 
eliminate  them,  and  understands  quite  well  how  to  improve 
the  breeds  of  horses,  cattle,  hogs  and  fowl.  The  wise  farmer 
carefully  selects  the  seed  for  his  fields,  excluding  every  de- 
fective kernel  as  far  as  practicable.  Neither  among  domestic 
animals  nor  field  crops  does  he  hope  for  good  results  from 
bad  seed.  Why  may  not  society  exercise  the  same  care  and 
intelligence  with  reference  to  the  propagation  of  the  human 
race  that  it  does  over  the  lower  animals?  To  answer  this 
question  we  have  first  to  determine  whether  it  is  morally  right 
to  protect  future  generations  from  criminals  and  defectives 
by  preventing  their  propagation;  second,  whether  it  is  ex- 
pedient to  do  so,  and  third,  what  system  can  be  adopted  and 
what  are  the  limitations  of  the  rightful  exercise  of  the  power. 
In  a  household  which  starts  from  a  well  mated,  healthy 
and 'congenial  pair,  perfect  liberty  to  live  lives  of  devotion 
to  each  other  and  to  their  children  is  recognized  as  of  the 
highest  value.  So  sensitive  and  delicate  are  the  adjustments 
of  the  affections  that  no  one  without  the  circle  can  fully  ap- 
preciate or  understand  them.  All  such  pairs  realize  their 
responsibility  for  their  own  welfare  and  shrink  from  all  out- 
side interference.  The  state  generally  recognizes  its  inability 
to  add  to  domestic  happiness,  and  interferes  only  in  those 
cases  where  one  or  both  parents  have  been  grossly  derelict  in 
duty  or  children  are  incorrigible.  The  moral  right  to  do- 
mestic privacy  and  freedom  is  generally  conceded,  and  the 
inexpediency  of  state  interference  with  domestic  relations 
under  normal  conditions  is  recognized. 


INTRODUCTION  15 

In  the  treatment  of  children  parents  act  according  to  their 
own  dispositions  and  capacities  and  those  of  their  children. 
The  uplifting  force  is  love  and  devotion  to  their  welfare.  The 
happiest  homes  are  doubtless  those  where  the  parents  are  able 
to  lead  their  children  in  the  right  paths  by  reason;  where  all 
good  impulses  are  sympathetically  encouraged  and  the  ca- 
pacity for  self-restraint  developed  as  early  in  life  and  as 
rapidly  as  possible.  Where  force  is  resorted  to  it  should  al- 
ways be  as  a  temporary  expedient  to  overcome  resistance  of 
authority.  Its  educational  value  can  be  no  more  than  to  incul- 
cate the  lesson  that  resistance  is  futile,  and  it  is  therefore 
necessary  to  make  its  use  accomplish  the  desired  result.  It 
may  well  be  doubted  whether  beating,  scolding  or  restraint  of 
liberty,  inflicted  merely  as  punishment  for  disregard  of  duty, 
ever  accomplishes  a  beneficial  result.  The  problem  is  to 
arouse  the  impulses  that  lead  to  right  conduct.  Blows  excite 
a  spirit  of  resentment  and  angry  words  responding  anger. 
The. spirit  manifested  by  the  parent  arouses  its  counterpart 
in  the  child.  Fear  of  punishment  tends  to  cowardice,  resort 
to  falsehood  and  deception  to  avoid  the  punishment,  rather 
than  to  stimulate  a  wish  to  do  the  things  the  parent  will  ap- 
prove. The  legitimate  object  of  correction  is  improvement  in 
the  child,  and  this  can  only  come  by  stimulating  good  im- 
pulses, convincing  its  reason,  or  awakening  its  perceptions 
of  the  moral  quality  of  the  act  or  duty  involved,  or  leading 
it  to  see  advantage  or  superior  enjoyment  in  good  conduct. 
It  is  often  assumed  that  very  young  children  can  be  ruled  only 
by  force.  Adults  are  led  by  suggestion.  The  force  of  sug- 
gestion is  most  potent  to  the  infant.  The  incapacity  of  the 
parents  to  lead  by  suggestion  induces  resort  to  force  to  drive 
the  child  in  the  desired  direction  or  punishment  after  the  act 
for  misconduct.  The  primary  need  is  that  the  parent  be  in- 
structed in  the  art  of  governing  children. 

On  no  subject  is  the  law  more  divergent  than  that  of  di- 
vorce. Even  among  the  states  of  the  American  Union  there 
is  nothing  like  uniformity  of  rule  on  the  subject.  Theories 
vary  all  the  way  from  allowing  divorce  at  the  pleasure  of 
either  party  to  denying  it  altogether,  and  the  practices  pre- 


i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vailing  go  nearly  to  these  extremes.  A  decree  of  court  is 
required  in  all  the  states,  but  in  many  of  them  it  may  be  ob- 
tained for  slight  cause  and  under  few  restrictions.  The  He- 
brew law  allowed  the  husband  to  divorce  his  wife  at  will, 
and  Mohammed  announced  the  same  rule  in  substance.  The 
objections  to  divorce  do  not  appear  so  serious  where  there 
are  no  children  of  the  union,  but  a  child  has  claims  on  each 
parent  for  love,  care  and  protection,  and  a  right  to  a  home 
with  both  father  and  mother  in  it,  bound  together  by  love. 
Parents  of  little  children  cannot  divide  the  home  without  vio- 
lating the  moral  law.  But  when  husband  and  wife  find  them- 
selves utterly  unable  to  live  together  in  harmony,  what  is  to 
be  done  and  what  rule  of  public  law  can  make  adequate 
provision  for  the  case  ?  No  decree  of  court  or  administrative 
process  has  ever  been  discovered  that  can  compel  kindness  and 
afifection.  The  moral  rules  applicable  to  the  conduct  of  the 
parties  are  not  difficult  to  perceive,  but  unless  they  voluntarily 
follow  them,  no  external  force  can  compel  them  to  do  so. 
By  allowing  a  divorce  the  law  sanctions  the  disruption  of  the 
family,  by  denying  it  an  innocent  party  may  be  doomed  to 
endure  unbearable  treatment.  The  obligation  of  the  state  to 
provide  as  far  as  practicable  against  unsuitable  marriages  and 
to  make  conditions  as  favorable  to  domestic  happiness  as 
possible  may  call  for  attention  to  many  matters  now  neglected. 
The  possibilities  of  improvements  along  these  lines  present  a 
field  too  wide  to  be  covered  in  this  brief  review. 

Crimes  and  Punishments 

The  primary  domestic  function  of  a  government,  recog- 
nized in  all  ages  in  all  countries  is  the  preservation  of  order 
and  protection  of  the  citizens  from  violence  and  wrong  other 
than  such  as  the  governing  power  and  the  sentiment  of  the 
people  tolerate.  In  the  most  primitive  states  violence  to  the 
person  is  the  prevailing  form  of  crime,  and  retributive  justice 
usually  takes  the  form  of  vengeance  inflicted  by  the  injured 
party  or  his  friends.  For  homicide  the  kinsman  of  the  mur- 
dered man  may  kill  the  murderer.  In  some  states  provision 
has  been  made  for  the  payment  of  blood  money  to  appease 


INTRODUCTION  17 

the  avenger,  and  for  places  of  refuge  into  which  the  avenger 
may  not  follow.  In  the  code  of  Hammurabi  of  Babylon,  the 
Jewish  and  other  ancient  codes  the  le.v  talionis,  wrong  for 
wrong,  was  the  rule  of  punishment;  for  any  injury  a  corre- 
sponding injury  to  the  wrong-doer.  There  is  something  in 
this  simple  rule  that  seems  to  appeal  to  the  sense  of  justice 
of  the  child  and  of  a  great  part  of  the  grown  people  as  well. 
To  return  blow  for  blow,  when  attacked,  and  to  kill  an  as- 
sailant, when  necessary  to  preserve  one's  own  life  is  regarded 
as  justifiable  in  the  most  enlightened  states.  Self-preserva- 
tion appears  to  be  a  natural  right.  Organized  society  goes 
farther  than  this  and  after  the  danger  is  past,  the  culprit 
overpowered  and  held  securely,  as  a  return  and  punishment 
for  the  wrong  done,  inflicts  a  corresponding  wrong  on  him. 
In  considering  the  general  aspect  of  the  administration  of  the 
criminal  law  in  Christian  states  the  first  question  to  be  con- 
sidered is,  is  it  morally  right  in  principle,  second,  is  it  the 
most  expedient  to  promote  the  general  welfare.  Writers  on 
political  science  are  unable  to  agree  on  the  theory  of  punish- 
ments. The  primitive  idea  is  to  compensate  crime  with  suf- 
fering, and  deter  the  commission  of  like  offenses  by  fear 
of  like  punishment.  This  view  is  still  widely  entertained. 
Another  is  that  the  state  takes  such  measures  as  appear  neces- 
sary to  protect  society  from  a  repetition  of  the  offense,  ab- 
staining from  merely  vindictive  punishments.  A  third  is  that 
society  owes  a  duty  to  the  culprit,  and  should  aid  him  in 
every  way  to  overcome  his  unsocial  propensities;  that  the 
state  has  no  moral  right  to  inflict  injury  or  pain  on  any 
human  being  for  the  mere  purpose  of  punishment  for  any 
act  or  conduct ;  that  good  will  toward  the  culprit  must  prevail 
in  his  treatment,  and  his  welfare  and  reformation  be  prime 
considerations.  That  the  state  has  the  moral  right  to  do 
whatever  is  necessary  to  protect  the  people  when  the  criminal 
openly  violates  the  rights  of  others  and  forcibly  resists  the 
rightful  exercise  of  private  rights  or  public  authority,  and 
that  he  must  be  left  in  danger  of  injury  while  the  struggle 
continues  and  cannot  claim  protection  from  the  public  against 
the  immediate  consequences  of  his  own  acts,  appear  evident. 


i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

But  when  the  power  of  resistance  of  the  criminal  is  overcome, 
what  measure  of  duty  does  the  state  owe  him?  It  cannot 
then  do  him  harm  on  the  plea  of  immediate  necessity.  Can 
there  be  a  defenseless  human  being  wholly  without  the  pale 
of  governmental  care?  May  the  state  assume  a  permanently 
hostile  attitude  toward  criminals  as  men,  or  is  it  morally 
bound  to  have  the  same  concern  for  those  who,  because  of 
innate  defects  or  unfavorable  environment,  have  committed 
crime,  that  it  has  for  normal  humanity?  It  is  apparent  that 
the  infliction  of  the  death  penalty  is  not  on  the  theory  of 
conferring  a  benefit  on  the  criminal.  Confinement  in  jails  and 
penitentiaries  under  needlessly  rigorous  conditions  rarely  has 
any  tendency  to  reform,  but  on  the  contrary  stimulates  the 
study  of  crime,  induces  hateful  and  revengeful  feelings,  and 
at  the  end  of  the  term  turns  out  a  more  expert  and  hardened 
criminal.  The  view  generally  entertained  is  that  the  system 
followed  tends  to  protect  society  from  further  wrongs  by  the 
criminal  and  also  to  deter  others  from  ilke  offenses  by  the  fear 
of  like  punishment.  So  far  as  the  criminal's  own  conduct 
is  concerned  experience  abundantly  proves  that  the  protection 
of  society  ends  with  his  confinement.  Unless  he  goes  out  with 
better  social  purposes  than  he  had  when  he  went  in,  the  public 
purpose  has  not  been  accomplished.  It  is  at  least  doubtful 
whether  cruelty  has  any  tendency  to  convince  him  of  the  im- 
morality of  the  act  for  which  he  is  punished.  He  will,  how- 
ever, readily  perceive  the  immorality  of  the  excessive  cruelty 
to  himself,  and  hate  those  who  inflict  it  on  him.  The  state 
being  responsible  for  his  confinement;  he  quite  naturally  at- 
tributes all  his  suffering  to  the  public  and  feels  that  society 
in  general  is  his  enemy.  To  put  him  out  into  society  with 
such  feelings  is  almost  equivalent  to  an  invitation  to  recom- 
pense himself  as  best  he  can  at  the  expense  of  society  for  the 
wrongs  done  him.  So  far  as  the  tendency  to  deter  others 
from  like  offenses  is  concerned,  severity  of  treatment  in  con- 
finement can  have  no  effect  unless  known  to  the  persons  whose 
conduct  it  is  desired  to  influence.  This  could  only  become 
generally  effective  by  making  the  barbarities  practiced  gen- 
erally known,  which  of  course  the  state  and  the  prison  offi- 
cials would  be  unwilling  to  do. 


IXTRODUCTIOX  19 

The  researches  of  modern  criminologists  disclose  the  ex- 
treme crudity  of  the  penal  codes  of  Europe  and  America, 
which  yet  appear  far  better  than  the  ancient  lex  talionis  or 
the  Asiatic  codes  of  modern  times.  Malicious  murder,  delib- 
erately committed,  always  produces  a  profound  sensation  of 
horror,  usually  accompanied  by  a  general  desire  for  speedy 
vengence  on  the  murderer.  Of  such  murders  many  are  in- 
duced by  a  desire  of  revenge  for  some  real  or  fancied  injury. 
These  are  seldom  if  ever  committed  under  normal  mental 
conditions,  for  the  normal  state  of  the  human  mind  is  one  of 
either  indifference  or  good  will  toward  others.  The  misan- 
thrope is  such  because  he  is  abnormal  from  birth  or  made  so 
by  subsequent  influences.  The  normal  healthy  person  desires 
the  welfare  of  others,  and  it  is  because  of  this  general  feeling 
that  the  community  is  shocked  when  a  murder  is  committed. 
If  all  or  a  majority  were  misanthropes,  they  would  feel 
pleasure  rather  than  pain  at  the  destruction  of  a  human  life 
and  applaud  rather  than  condemn  the  act  of  the  murderer. 
The  law  now  prohibits  the  friends  and  relatives  of  the  mur- 
dered man  from  killing  the  murderer  under  the  natural 
promptings  of  anger  and  resentment  caused  by  the  deed;  but 
after  trial  and  conviction,  it  requires  a  public  officer,  having 
no  feeling  in  the  case  different  from  that  of  the  general  public, 
to  put  the  murderer  to  death,  deliberately,  intentionally,  and  at 
a  time  and  place  appointed  by  the  court  in  accordance  with 
the  law.  In  a  large  part  of  the  cases  the  general  summing  up 
of  the  matter  is  that  the  murderer  has  taken  a  human  life  to 
gratify  his  private  desire  for  vengeance,  and  the  public  has 
taken  his  life  to  gratify  a  general  desire  of  the  people  for 
vengeance.  Hatred  moved  the  murderer  to  commit  the  deed, 
and  hatred  of  the  crime,  carried  on  to  hatred  of  the  human 
being  who  committed  it,  induces  the  public  to  execute  the 
murderer.  Not  only  is  the  public  act  similar  to  the  private 
crime,  but  the  motive  inducing  it  is  essentially  the  same.  In 
morals  then  the  punishment  is  wrongful  as  well  as  the  crime. 

One  of  the  cardinal  doctrines  of  the  criminal  law  is  that 
the  defendant  must  be  tried  for  the  particular  offense  with 
which  he  stands  charged,  and  the  inquiry  be  strictly  limited 


20  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

to  his  guilt  or  innocence  of  that  offense.  It  is  not  a  century 
since  people  were  executed  in  England  for  small  larcenies  and 
other  minor  offenses.  The  extreme  penalty  of  death  was  in- 
flicted for  the  single  act  without  reference  to  the  general 
character  and  conduct  of  the  culprit,  or  to  his  environment. 
It  is  apparent  that  organized  society  has  no  greater  moral 
right  to  harm  a  citizen  merely  to  gratify  the  general  desire 
for  vengeance  than  a  private  person  has. 

The  whole  system  of  harsh  punishments  rests  on  views  of 
expediency  for  its  justification.  It  is  doubtless  true  that  some 
people  are  deterred  from  crime  by  fear  of  punishment,  but 
it  is  equally  true  that  criminals  usually  rely  on  concealment 
of  their  crimes  and  escaping  the  punishment,  whatever  its 
severity.  The  moral  tone  of  any  state  that  punishes  harshly 
is  necessarily  low.  Reports  of  the  hangings  of  criminals 
shock  the  finer  sensibilities  and  teach  lessons  of  hatred  and 
disregard  for  human  life.  If  the  state  is  cruel  and  merciless 
why  may  not  the  private  citizen  be  so  too?  The  criminal  in 
fact  seldom  weighs  the  punishment  against  the  crime,  He 
always  expects  to  avoid  conviction  and  escape  the  penalty, 
whatever  it  may  be.  Fines  and  forfeitures  may  deter  from, 
conduct  having  no  moral  turpitude,  but  prohibited  by  law,  but 
have  Httle  influence  on  hardened  criminals.  The  best  justifi- 
cation that  can  be  found  for  vindicitive  punishments  is  that 
the  state  has  not  suflicient  intelligence  and  moral  force  to  find 
better  means  for  the  execution  of  its  laws.  If  laws  prescribe 
punishment  for  their  infraction  and  no  other  means  of  com- 
pelling obedience  to  them,  then  the  punishment  must  be 
administered  or  the  law  is  without  force.  The  general  senti- 
ment of  mankind  is  strongly  in  favor  of  law  enforcement,  so 
vindictive  punishments  continue. 

Can  expedients  be  found  for  the  prevention  of  crime  and 
the  protection  of  society  without  the  violation  of  the  moral 
law  by  the  state  itself?  Manifestly  this  question  must  be 
answered  in  the  affirmative,  yet  perhaps  no  person  is  capable 
of  giving  a  full  and  clear  statement  of  the  expedients  which 
would  fully  accomplish  the  object.  Parents  find  it  necessary 
to  study  the  peculiarities  of  their  children  and  to  adapt  their 


IXTRODUCTION  21 

corrections  to  these  peculiarities.  This  however  is  of  minor 
importance,  for  the  secret  of  success  in  governing  the  young 
hes  in  earnest  loving  care,  which  instructs  and  leads  the  child 
to  act  for  its  own  best  interests  and  greatest  joy,  which  gives 
liberty  to  choose  where  the  question  is  only  of  expediency  or 
taste,  which  makes  clear  the  consequences  of  wrong-doing, 
not  in  arbitrary  human  punishment,  but  as  ensuing  naturally 
and  necessarily  from  the  misconduct  itself.  It  is  by  leading 
the  child  to  a  clear  understanding  of  the  advantages  of  good 
conduct,  and  by  instilling  lofty  sentiments  of  virtue,  truth- 
fulness and  kindliness,  coupled  with  the  opportunity  to  realize 
in  practice  the  truth  of  the  instruction,  that  strong  characters 
are  formed.  Mere  abstract  teachings  may  not  be,  and  usually 
are  not,  comprehended.  The  child  must  be  led  in  the  right 
paths  and  restrained  from  going  in  the  wrong  ones.  At  no 
time  and  under  no  circumstances  is  it  permissible  for  the 
parent  to  exhibit  or  feel  hatred  toward  the  child.  Love  at- 
tracts, hatred  repels.  No  person  can  by  any  possibility  ex- 
ercise a  beneficial  influence  under  the  impulse  of  hatred. 
Neither  cruel  beatings  nor  weak  indulgence  in  wrong-doing 
is  to  be  tolerated.  The  parent  must  maintain  a  close  bond 
of  interest  in  the  doings  of  the  child,  encouraging  all  good 
deeds,  and  pointing  out  the  evil  and  showing  why  and  w^here- 
in  it  is  wrong.  Children  instinctively  rely  on  parental  in- 
struction, if  parents  are  truthful  and  sincere,  and  delight  in 
their  sympathy  and  approbation.  Knowledge  that  an  act  is 
condemned  by  parents  who  are  habitually  kind  and  sympa- 
thetic is  usually  sufficient  to  prevent  its  repetition.  To  re- 
strain misconduct  and  compel  the  performance  of  duty  the 
use  of  physical  force  is  sometimes  necessary;  but  when  used 
it  should  always  be  made  manifest  that  it  is  justly  used  for 
good  ends.  Many  parents  lack  moral  force  and  are  unable 
to  control  their  own  passions  and  weaknesses.  The  children 
must  then  sufifer  accordingly.  In  such  cases  whence  is  the 
elevating  impulse  to  emanate?  Usually  and  mainly  from  the 
love  of  the  parent  for  the  child. 

To  society  the  correction  of  its  weak  immoral  and  vicious 
members  presents  the  same  task  but  in  a  different  form.     The 


22      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

state  undertakes  to  protect  each  of  its  citizens  against  the 
violence  and  aggression  of  others.  Most  monarchical  gov- 
ernments have  been  based  on  the  principle  of  paternal  author- 
ity in  the  ruler  over  all  the  people.  Unfortunately  the  exercise 
of  paternal  power  by  a  ruler  over  great  numbers  of  people 
lacks  the  sympathetic  element  w^hich  emanates  from  the  par- 
ental relation.  The  king  has  a  great  many  bad  children  whom 
he  proceeds  to  punish.  He  knows  of  their  vices  only.  These 
he  hates  and  carries  the  hatred  on  to  the  possessors  of  them. 
He  punishes  in  a  spirit  of  vengeance  and  harshly.  From  the 
bamboo  to  the  headsman's  axe  the  purpose  is  to  extirpate  crime 
and  inspire  fear  in  others  of  like  rigor  for  like  offenses.  To 
perform  the  service  of  administering  the  punishment  men  are 
chosen  who  are  not  greatly  shocked  at  exhibitions  of  cruelty, 
and  even  delight  in  it.  Though  instances  of  compassion  for 
criminals  are  not  wanting  in  Christian  countries,  and  at  times 
morbid  sympathy  is  exhibited,  the  general  spirit  is  all  too 
similar  to  that  in  despotic  governments. 

To  approach  the  consideration  of  crime  with  a  feeling  of 
genuine  desire  for  the  welfare  of  the  criminal  as  well  as  of 
society  may  be  beyond  the  stage  of  morality  generally  pre- 
vailing, yet  it  is  not  too  soon  to  perceive  and  declare  the  true 
principles  applicable  to  the  subject.  Everyone  who  has  had 
much  experience  with  criminals  knows  that  practically  all  of 
them  have  virtues  and  are  susceptible  to  friendly  attachments 
as  well  as  other  people.  They  are  usually  specialists  in  crime. 
The  homicide  may  be  truthful  and  scrupulously  honest  in  the 
payment  of  debts  and  performance  of  contracts.  His  crime  is 
generally  due  to  some  abnormal  emotion.  It  is  impossible  to 
draw  a  clear  line  of  demarkation  between  irresponsible  in- 
sanity and  responsible  passion.  The  legal  rule  that  the  de- 
fendant is  responsible  for  his  act  if  he  knew  at  the  time  of 
committing  it  that  it  was  wrongful,  even  though  he  was 
powerless  to  master  his  passion,  is  harsh  when  the  purpose  of 
the  law  is  merely  to  measure  out  a  given  quantity  of  punish- 
ment. The  forger,  the  pickpocket,  the  defaulter  or  the  per- 
jurer, may  have  as  little  inclination  to  do  bodily  harm  to 
another  as  the  most  exemplary  citizen.     The  robber  and  the 


IXTRODUCTIOX  23 

horsethief  almost  invariably  have  generous  impulses  and  de- 
voted friends  to  whom  they  are  strongly  attached.  The  per- 
jurer may  have  no  other  prominent  vice,  and  may  have 
friends  whom  he  does  not  deceive.  Crime  may  be  committed 
in  accordance  with  a  well  defined  inclination  to  a  particular 
class  of  offenses,  or  under  stress  of  circumstances  which 
produce  a  temporary  moral  depression.  This  is  more  ap- 
parent in  homicides  than  in  other  crimes,  but  offenses  against 
property  are  often  the  result  of  temporary  external  influences 
which  the  culprit  cannot  resist.  To  weigh  the  conduct  of  a 
person  charged  with  crime  fairly,  the  judge  should  be  able 
to  see  his  act  from  his  standpoint.  This  he  is  but  rarely  able 
to  do.  Everybody  departs  more  or  less  from  the  strict  line 
of  moral  rectitude.  The  Chinese,  more  logically  than  the 
Europeans,  treat  every  failure  to  perform  a  duty  or  obliga- 
tion as  an  offense  to  be  corrected,  and  grade  punishments 
according  to  the  magnitude  of  the  wrong  done  and  all  the  cir- 
cumstances connected  with  the  offense.  They  are  however 
far  less  sympathetic  in  their  treatment  of  offenders  than 
Americans. 

It  is  now  quite  well  understood  by  criminologists  that  a 
single  offense  may  be  committed  by  one  who  is  not  necessarily 
starting  on  a  career  of  crime,  but  may  completely  overcome  his 
criminal  inclinations;  that  it  is  necessary  to  know  the  char- 
acter and  environments  of  a  convict  in  order  to  understand 
how  he  should  be  treated  with  a  view  to  his  reformation,  and 
that  men  are  made  better  by  sympathy  and  encouragement  in 
doing  what  is  right  and  useful,  rather  than  by  harsh  punish- 
ments. Many  crimes  are  directly  attributable  to  abnormal 
and  diseased  conditions  of  the  body  or  the  brain.  Some  of 
these  can  be  speedily  and  certainly  cured  by  surgical  and  medi- 
cal treatment.  Instead  of  burning  or  hanging  the  humane 
and  logical  punishment  of  rape  would  be  castration,  which 
would  free  the  culprit  from  all  further  impulse  to  commit 
such  a  crime.  The  same  operation  might  be  performed  with 
great  advantage  on  some  of  the  imbecile,  insane  and  crimi- 
nals of  other  sorts.  Imbeciles  who  are  a  public  charge  cer- 
tainly ought  not  to  be  allowed  to  propagate,  nor  the  incurable 


24      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

insane  or  confirmed  criminal.  This  like  every  other  treatment 
of  unfortunates  should  be  done  in  a  spirit  of  kindness,  and 
for  the  purpose  of  benefiting  rather  than  injuring  them.  In 
many  states  laws  are  now  in  force  prohibiting  the  marriage  of 
members  of  these  classes,  but  such  laws  are  by  no  means  a 
full  protection  to  society.  In  many  cases  it  is  necessary  to 
take  more  effective  measures.  The  exercise  of  such  power  is 
not  necessarily  liable  to  greater  abuse  than  of  others  now 
commonly  employed.  Whatever  measures  are  taken  to  cure 
mental  and  moral  diseases  should  be  prompted  by  the  same 
motives  as  those  which  prompt  surgical  operations  or  medical 
treatment  for  normal  people.  All  these  unfortunate  classes 
are  children  of  the  state,  and  the  state  is  responsible  for  their 
welfare. 

Opposed  to  the  performance  of  its  moral  duty  by  the  state 
in  the  treatment  of  criminals  and  defectives  are  views  of  ex- 
pediency. In  apprehending  and  disarming  criminals  and  luna- 
tics it  is  often  necessary  to  employ  force  and  to  do  them  bodily 
harm,  yet  a  resolute  man  can  often  make  an  arrest  without 
any  injury,  where  another  would  have  a  serious  conflict.  It 
is  impossible  for  the  state  to  always  select  the  best  possible 
agents  to  do  this  work.  So  long  as  men  are  imperfect,  they 
will  fall  short  of  the  best  possible  achievements  in  every  line, 
and  a  state,  acting  on  the  most  humane  and  enlightened  prin- 
ciples and  theories,  will  necessarily  exhibit  imperfections  in 
practice.  It  is  of  the  utmost  importance  however  that  the 
state  free  itself  from  every  just  charge  of  acting  on  the  princi- 
ple of  hatred  toward  any  class  of  its  citizens.  Charitable  in- 
stitutions, prompted  by  sympathy  for  unfortunate  humanity, 
are  being  rapidly  multiplied.  The  elimination  of  all  the  bur- 
densome classes  by  wise  and  just  means  is  not  an  idle  dream, 
but  an  accomplishment  which  may  be  approximated  in  the 
near  future. 

The  code  of  Hammurabi  of  Babylon  exhibits  the  spirit  of 
hatred  toward  criminals.  Of  all  punishments,  maiming,  so 
frequently  imposed  by  this  code,  is  the  most  impolitic,  for  it 
leaves  society  still  burdened  with  the  criminal  after  his  power 
to  be  useful  has  been  diminished  and  his  hatred  for  others 


IXTRODUCTIOX  25 

stimulated.  To  put  out  an  eye  or  cut  off  a  hand  or  foot  is  a 
most  shocking  exercise  of  cruelty,  yet  such  punishments  were 
long  recognized  as  just  throughout  Babylonia  and  Judea. 

One  of  the  most  valuable  ideas  developed  by  Bentham  in 
his  Morals  and  Legislation  is  that  of  the  fecundity  of  various 
impulses.     Much  of  the  cruelty  and  misery  in  the  world  has  | 
resulted  from  laws  like  those  of  Babylon,  which  constantly  in-  \ 
stilled  a  lesson  of  hatred  into  the  minds  of  the  people.     The   / 
propagation  of  sentiments  of  amity  and  sterilizing  those  of 
enmity  are  matters  of  prime  importance  for  the  consideration 
of  legislators  in  dealing  with  crime,  and  should  not  be  left  in 
the  sole  care  of  moralists  and  religious  teachers.     It  is  evident 
that  no  state  ever  has  or  ever  can  weigh  out  and  impose  on 
each  culprit  a  measure  of  punishment  nicely  balancing  his 
offense.     The  multiplicity  of  considerations  to  be  taken  into 
account  in  each  case  is  so  great  that  adequate  judicial  machin- 
ery cannot  be  constructed  for  the  work.    Restraints  seem  nec- 
essary, and  the  imposition  of  them  must  be  in  accordance  with 
law  by  public  agents,  but  the  deeper  and  stronger  purpose  is 
to  induce  good  conduct.     Wars,  the  execution  of  criminals,  \ 
torture  and  all  vindicitive  punishments  propagate  the  spirit  of  I 
hatred  and  induce  criminal  conduct. 

National  Crimes 

The  strong  nations  are  subject  only  to  self-imposed  checks, 
prompted  by  sentiments  of  justice,  selfish  interest,  fear  or 
other  considerations  influencing  their  conduct.  There  is  no 
superior  force  to  restrain  or  punish  them.  That  great  nations 
commit  great  crimes  is  apparent.  The  example  of  an  aggres- 
sive war  teaches  all  the  people  of  the  nation  a  lesson  of  crime. 
While  the  nation  itself  acts  the  part  of  a  criminal  how  can  it 
hope  to  instruct  its  citizens  in  morality?  An  aggressive  war 
to  take  by  force  that  which  belongs  to  another  is  identical 
in  principle  with  the  deed  of  the  robber.  The  incidental 
slaughter  in  battle  corresponds  exactly  with  the  murders  the 
robber  commits  in  getting  his  booty.  Logically  the  state 
should  deny  to  itself  utterly  the  right  to  use  military  force 
against  another  except  in  self  defense.     The  moral  law  ap- 


26  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

plies  as  well  to  nations  as  to  persons.  It  is  only  by  full  recog- 
nition of  its  binding  force  in  all  human  relations  that  a  state 
can  hope  to  deal  successfully  with  its  morally  weak  citizens. 
Judicial  settlement  of  international  disputes  in  accordance 
with  fixed  principles  is  indispensable  to  a  complete  scheme  for 
the  elimination  of  crime.  The  false  lessons  inculcated  by  a 
great  war  affect  the  moral  tone  of  the  people  for  generations. 
The  nation  should  be  the  great  teacher  and  exemplar  of  mor- 
ality. When  it  voluntarily  goes  to  war  it  becomes  a  great 
teacher  of  crime. 

Legislative  Morality 

The  functions  exercised  by  a  state  are  divided  into  legisla- 
tive, judicial  and  executive.  Briefly  stated,  the  legislature 
declares  the  law,  the  judiciary  interprets  it  and  determines 
its  application  and  the  executive  carries  it  into  effect.  It 
would  seem  that  the  business  of  a  law  making  body  would 
naturally  be  to  formulate  rules  of  conduct  and  of  rights  ex- 
pressive of  the  moral  law.  The  most  casual  examination  of 
the  work  of  any  such  body  will  disclose  the  fact  that  consider- 
ations of  expediency  largely  predominate,  and  that  the  pure 
moral  law  is  generally  regarded  as  too  good  for  practical  use 
in  a  world  where  men  are  constantly  seeking  personal  ad- 
vantage by  the  use  of  more  or  less  immoral  expedients.  In 
defining  crimes  the  legislature  gives  names  to  certain  classes 
of  immoral  acts.  The  list  is  brief  when  compared  with  one 
including  all  the  immoral  conduct  of  which  people  are  guilty, 
but  it  includes  those  most  vicious  and  common.  Concerning 
some  vices  there  is  a  tendency  for  public  opinion  to  ebb  and 
flow,  and  for  legislatures  to  adopt  extreme  measures  of  re- 
pression at  one  time  and  at  another  to  indulge  the  utmost 
toleration.  Thus  drunkenness,  gambling,  prostitution,  liquor 
selling,  usury  taking  and  like  offenses  are  sometimes  visited 
with  severe  penalties,  and  at  others  with  none.  Heresy,  witch- 
craft and  other  fictitious  crimes  are  at  times  visited  with 
death  by  torture  and  at  others  laughed  at  as  absurd.  Resist- 
ance of  an  oppressive  ruler  is  treason  when  unsuccessful  and 
patriotic   revolution   when   it   results   in    the   expulsion   of   a 


INTRODUCTION  2-7 

tyrant.  Smuggling  goods  is  an  offense  or  not  according  to 
the  prevailing  policy  of  the  government  with  reference  to 
revenue  and  foreign  trade.  It  involves  no  moral  wrong  when 
the  trade  is  in  useful  articles  and  the  parties  to  the  transaction 
are  mutually  benefited,  except  as  there  may  be  a  moral  ob- 
ligation to  pay  a  tax  on  the  goods. 

On  the  other  hand  there  are  moral  wrongs  in  great  number 
which  European  and  American  states  never  attempt  to  punish 
as  crimes.  It  is  morally  wrong  for  an  able  bodied  man  to 
live  by  begging  instead  of  useful  labor.  This  is  sometimes 
punished  though  the  beggar  gets  only  the  most  meagre  subsis- 
tence from  the  public.  It  is  a  far  greater  moral  wrong  for  a 
strong  healthy  intellectual  man  to  live  in  idleness  and  luxury 
on  the  labors  of  others,  yet  those  who  have  means  to  do  so 
are  not  only  never  punished,  but  are  usually  looked  up  to  as 
of  a  superior  class.  It  is  always  wrong  to  refuse  to  pay  a 
just  debt  when  able  to  do  so,  but  it  is  not  classed  as  a  crime. 
It  is  a  moral  wrong  to  withhold  from  another  anything  that 
of  right  belongs  to  him,  yet  in  many  cases  it  is  not  regarded 
as  a  crime.  The  Chinese  more  logically  classify  all  wrongful 
acts  and  failures  to  perform  duties  as  punishable  offenses.  It 
is  morally  wrong  to  fail  in  any  duty  to  aid  another,  yet  rarely 
punishable.  It  is  morally  wrong  to  refuse  to  do  a  useful  part 
in  life  and  exchange  service  for  service  and  kindness  for  kind- 
ness, yet  it  is  not  and  seldom  could  be  a  punishable  crime. 

From  the  instances  given  it  is  apparent  that  a  legislative 
body  in  selecting  offenses  to  be  punished  is  governed  by  views 
of  necessity  and  expediency.  It  is  utterly  impracticable  to 
have  courts  sitting  in  judgment  on  every  trifling  deviation 
from  strict  moral  rectitude.  Such  trials  would  be  an  in- 
tolerable burden,  productive  of  great  harm  and  little  or  no 
good.  The  legislature  therefore  selects  such  crimes  as  ap- 
pear most  dangerous  to  society  and  imposes  penalties  for 
their  commission.  In  dealing  with  these  it  is  a  matter  of 
great  difliculty  for  the  state  to  keep  within  moral  limits. 
With  the  abolition  of  whipping  posts,  pillories  and  the  death 
penalty  and  the  adoption  of  more  humane  treatment  of  pris- 
oners in  places  of  confinement,  there  are  evidences  of  a  grow^- 


28      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  conviction  that  the  state  has  no  moral  right  to  do  evil  to 
a  criminal  to  gratify  public  hatred  of  the  crime.  The  true 
theory  of  the  relation  of  the  state  to  criminals  is  that  it  is  one 
of  guardianship  and  similar  to  that  assumed  in  the  care  of 
lunatics.  Its  duty  is  to  protect  the  public  against  their  vio- 
lence and  cunning,  and  at  the  same  time  promote  the  welfare 
of  the  culprit. 

In  dealing  with  the  rules  governing  what  are  termed  civil 
cases  the  legislature  has  a  far  wider  field  to  cover.  Crime  is 
abnormal  and  exceptional,  but  in  highly  civilized  states  the 
people  are  interdependent,  and  the  rules  governing  their  deal- 
ings and  relations  have  more  or  less  effect  on  all.  It  would 
seem  to  be  the  business  of  the  law-making  power  to  elaborate 
and  arrange  in  logical  order  all  rules  which  are  to  be  ob- 
served as  law.  It  would  also  appear  to  be  its  duty  to  make 
every  rule  conform  to  the  moral  law;  in  fact  to  make  rules 
which  are  merely  expressive  of  the  moral  law  applicable  to 
each  different  class  of  relations  and  transactions.  Neither 
of  these  things,  however,  has  ever  yet  been  accomplished. 
Nothing  can  better  illustrate  human  selfishness  and  fallibility 
than  the  deficiencies  and  imperfections  of  the  great  codes 
which  have  been  promulgated  in  different  ages  and  parts  of 
the  earth.  Cases  continually  arise  for  which  there  is  no  pro- 
vision, and  doubts  as  to  what  rule  governs  under  a  given  set 
of  circumstances  perplex  the  judges.  All  great  codes  have 
been  in  main  compilations  of  the  rules  already  observed  in  the 
courts,  and  have  naturally  embodied  whatever  unjust  and 
immoral  system  had  been  before  firmly  established.  Thus 
the  Code  of  Manu,  so  exalted  in  much  of  its  principles,  is 
based  on  classifications  of  the  people  designed  to  maintain  the 
supremacy  of  the  priestly  and  military  orders;  The  code  of 
Justinian  merely  continued  the  laws  concerning  slavery,  per- 
sonal relations  and  property  rights  with  slight  modifications, 
none  of  which  reached  their  fundamental  immoralities,  and 
the  Chinese  code  adheres  to  the  theory  of  the  inferiority  of 
women  and  cruel  punishments  for  all  serious  derelictions. 

The  absence  of  any  general  codification  of  the  law  in  Eng- 
lish speaking  countries  may  be  accounted  for  in  part  by  the 


INTRODUCTION  29 

greater  complexity  of  industrial  and  commercial  affairs,  the 
rapid  substitution  of  new  methods  for  old,  and  the  adherence 
to  judicial  precedents  to  supplement  the  statutory  law.  The 
difficulty  in  bringing  a  large  representative  body  like  the  Brit- 
ish Parliament  or  an  American  legislature  to  an  agreement 
on  so  many  and  such  varied  topics  as  would  necessarily  be 
included  in  a  code  covering  the  whole  field  of  civil  law  is  too 
great  to  allow  a  complete  codification  at  one  time  and  as  a 
single  act.  Codification  by  topics  is  more  feasible,  and  some 
progress  has  been  made  in  this  way  in  several  states.  The 
rapid  multiplication  of  judicial  precedents,  the  disposition  of 
some  courts  to  draw  nice  and  even  fanciful  distinctions  in 
order  to  reach  a  desired  result,  the  breaking  down  of  whole- 
some rules  by  the  multiplication  of  exceptions  to  them,  and 
the  growing  impracticability  of  administering  substantial  jus- 
tice by  the  system  now  followed,  call  for  some  form  of  more 
concise  and  authoritative  statement  of  the  law.  The  multipli- 
cation and  diversification  of  business  enterprises  and  combi- 
nations have  complicated  the  law  of  agency,  employer  and 
employee,  corporations  and  kindred  topics.  Continuing  de- 
velopment will  doubtless  cause  many  more  rapid  changes  in 
methods.  The  law  governing  the  new  relations  thus  developed 
cannot  lead,  but  must  necessarily  follow  the  new  conditions. 
Codification  for  the  future  can  only  cover  the  field  of  past 
and  existing  needs ;  it  cannot  adequately  provide  for  the 
unknown. 

The  principal  functions  ordinarily  exercised  by  all  legisla- 
tive bodies  relate  to  the  creation  of  offices,  defining  their 
functions,  designating  the  manner  of  filling  them,  levying 
taxes,  expending  public  money  and  regulating  the  various 
branches  and  departments  of  the  governmental  system.  In 
exercising  these  functions  they  work  in  the  true  field  of  ex- 
pediency. There  is  nothing  in  the  moral  law  indicating  the 
number  of  officers  needed  by  a  state,  the  duties  properly  at- 
tributable to  each,  the  length  of  time  each  should  serve  or  the 
mode  of  their  selection.  It  does,  however,  require  that  each 
public  servant  should  render  a  just  equivalent  in  service  for 
the  salary  he  receives,  and  impose  restrictions  on  his  invasion 


30  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  rights  .of  the  people.  In  devising  and  constructing  the 
machinery  of  government  the  law-making  power  has  the  task 
of  providing  governmental  agencies  to  restrain  the  people 
from  doing  wrong  and  to  compel  them  to  do  right.  In  this 
it  undertakes  to  exert  a  moral  force  superior  to  that  which 
directs  the  conduct  of  such  of  its  citizens  as  it  is  designed  to 
regulate.  All  experience  proves  that  the  men  chosen  for  offi- 
cial positions,  no  matter  what  the  form  of  the  government, 
are  not  distinctly  superior  in  moral  purposes  to  the  average 
citizen.  They  are  however  superior  to  the  classes  most  need- 
ing restraint  and  supervision.  By  carefully  defining  their 
duties  and  strictly  limiting  their  powers  the  officers  are  re- 
strained from  misconduct  and  instructed  in  the  performance 
of  their  duties. 

The  law-making  power  constructs  the  judicial  system,  es- 
tablishes courts,  provides  for  the  selection  of  judges,  fixes 
their  compensation  and  tenure  of  office,  prescribes  rules  of 
procedure  and  is  responsible  for  the  principles  of  law  admin- 
istered in  them.  It  also  outlines  the  organization  of  all  the 
executive  branches  of  the  government,  fixes  the  number  and 
prescribes  the  duties  of  each  class  of  officials  and  provides 
compensation  for  their  services.  It  authorizes  the  organiza- 
tion and  equipment  of  armies  and  imposes  taxes  to  maintain 
them.  In  doing  each  of  these  things  it  is  evident  that  the 
end  to  be  accomplished  should  be  a  moral  one,  but  in  devising 
means  to  accomplish  it,  the  legislature  necessarily  chooses 
such  instruments  and  methods  as  it  deems  best  adapted  to  the 
end.  Considerations  of  expediency  are  controlling.  If  these 
were  necessarily  considerations  of  public  expediency,  the  state 
would  be  in  no  danger  except  from  errors  of  judgment,  but 
unfortunately  personal  and  party  expediency  are  quite  too 
often  controlling  considerations.  Where  autocratic  power  is 
given  to  one  man,  his  ambitions  and  personal  interests  usually 
outweigh  the  public  welfare.  If  he  has  the  instincts  of  a 
robber,  he  makes  war  on  his  neighbors  for  his  own  aggran- 
dizement, and  leads  his  subjects  out  to  be  maimed  and  slaugh- 
tered in  the  effort  to  kill  others.  Where  the  law-making 
bodies  are  composed  of  many  members,  factional  and  party 


INTRODUCTION  31 

expediency  often  leads  astray.  An  exchange  of  personal 
favors  between  members  at  the  public  expense  is  also  a  most 
fruitful  source  of  bad  legislation.  There  is  a  never  failing 
tendency  to  multiply  offices  and  increase  salaries  to  the  ut- 
most limit  that  the  people  will  bear.  This  is  true  of  all  forms 
of  government,  though  most  extreme  in  the  most  despotic. 
It  results  everywhere  from  mere  motives  of  personal  ex- 
pediency. 

There  is  a  further  question  in  which  no  moral  consideration 
is  directly  involved,  yet  concerning  which  there  is  much  strife 
and  hot  contention.  What  business  functions  and  useful  en- 
terprises ought  the  state  to  conduct?  With  the  increasing 
disposition  and  capacity  of  men  to  combine  and  cooperate  in 
enterprises  calling  for  concert  of  action,  industries  have  de- 
veloped employing  great  numbers  of  men.  Railroad,  tele- 
graph, mining,  manufacturing  and  trading  companies,  deal 
with  so  many  people  that  their  management  becomes  a  mat- 
ter of  public  concern.  It  is  demonstrated  that  they  can  be 
operated  successfully  by  private  corporations  acting  through 
their  own  agents  and  officials  and  under  their  private  laws. 
It  is  also  shown  by  experience  that  some  of  them  can  be  suc- 
cessfully operated  by  public  agents.  The  question  then  is  pri- 
marily one  of  expediency.  Yet  expediency  deals  with  the 
selection  of  means  to  accomplish  ends,  and  we  often  find  pub- 
lic expediency  and  private  in  sharp  conflict.  Whenever  it 
can  be  truthfully  said  that  the  public  is  as  well  served  by  a 
private  owner  or  corporation  as  by  a  public  agency,  it  would 
seem  to  accord  with  the  principle  of  liberty  to  leave  the  busi- 
ness in  private  hands.  But  where  the  governing  agency  of  a 
private  corporation  uses  its  power  to  enrich  a  few  at  the 
expense  of  the  many,  or  fails  to  give  as  good  service  as  its 
revenues  warrant,  it  would  appear  necessary  to  either  effectu- 
ally supervise  or  assume  the  management  of  the  business. 
Supervision  necessitates  two  sets  of  managers,  one  for  the 
private  owner  and  the  other  for  the  public.  There  is  a  marked 
trend  in  the  direction  of  the  assumption  by  governments  of 
useful  business  functions,  but  no  modern  state  has  ever  ap- 
proximated the  business  organization  of  ancient  Peru,  which 


32      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

singularly  affords  a  model  of  state  ownership  of  the  ultimate 
title  to  all  the  land,  mines,  fisheries,  flocks  and  herds,  as  well 
as  the  roads  and  public  buildings. 

In  determining  the  expediency  of  assuming  business  func- 
tions by  the  state  the  capacities  of  the  men  whom  it  can  and 
will  place  in  public  office  and  their  moral  purposes  are  factors 
of  prime  importance.  No  mere  theory  of  organization,  how- 
ever attractive,  can  make  good  a  lack  of  capacity  for  the 
duties  imposed  on  public  agents.  Much  may  be  done  by  those 
charged  with  the  general  supervision  of  grant  enterprises  to 
systematize  and  simplify  the  work  of  each  subordinate,  and 
by  careful  instruction  in  their  respective  parts  to  qualify  men 
of  moderate  capacity  for  their  work.  This  is  equally  true 
under  public  and  private  management.  The  great  corpora- 
tions exhibit  great  inequality  in  the  apportionment  of  the 
benefit  of  the  combined  efforts  of  many  in  the  conduct  of 
their  business.  These  inequalities  are  based  in  part  on  the 
value  of  the  effort  contributed,  but  much  more  on  positions 
of  advantage  held  by  some,  due  to  the  government  of  the 
affairs  of  the  corporation  by  a  select  few.  This  results  from 
the  plan  now  generally  followed  of  allowing  a  majority  of 
the  stockholders  to  rule.  It  usually  insures  efficiency  and 
vigor  of  management,  but  at  the  expense  of  much  injustice. 
The  Post  Office,  operated  by  the  governments,  is  the  greatest 
and  best  business  organization  in  the  world,  and  is  a  model 
for  other  lines. 

The  legislature  makes  provision  for  public  schools,  in  all 
the  American  and  European  states,  with  some  few  exceptions. 
In  assuming  the  function  of  educating  the  young  in  public 
schools  modern  states  have  done  more  to  elevate  conceptions 
of  duty,  standards  of  morality  and  efficiency  in  all  lines  of 
activity  than  by  any  other  means.  Here  direct  public  super- 
vision has  been  shown  to  be  vastly  better  than  private  direc- 
tion. The  Hindoos  sought  to  insure  the  education  of  the 
twice  born  classes  by  requiring  the  instruction  of  the  youths 
as  a  religious  duty.  The  Chinese  encouraged  learning  by 
making  it  the  avenue  to  public  employment.  Modern  states 
give  instruction  as  a  preparation   for  all  the  duties  of  life. 


INTRODUCTION  33 

The  Hindoos,  the  Mohammedans  and  many  Christian  states 
regard  the  maintenance  of  the  estabHshed  religion  and  the 
observance  of  reHgious  forms  and  ceremonies  as  not  only  a 
legitimate  function  of  government,  but  one  of  prime  im- 
portance. The  Chinese  regard  forms  and  ceremonies,  mourn- 
ings, costumes,  kneelings,  knockings  and  salutations  of  all 
kinds  as  matters  worthy  of  strict  regulation  by  the  state.  It 
is  difficult  to  perceive  that  any  moral  question  is  involved  in 
religious  ceremonial  or  the  formalities  of  Chinese  etiquette, 
though  education  and  the  general  consensus  of  opinion  may 
give  them  an  artificial  value  hard  to  comprehend. 

Except  where  limited  by  constitutional  restrictions,  as  in 
the  United  States,  the  legislature  is  free  to  select  its  fields  of 
activity,  to  choose  the  ends  it  will  try  to  accomplish  and  the 
means  it  will  employ  for  its  purposes.  It  may  deal  with  mat- 
ters affecting  the  welfare  of  the  individual  only,  with  those 
relating  to  the  intercourse  of  one  with  another,  and  with  all 
forms  of  organization  and  combination  of  men,  and  it  neces- 
sarily deals  with  the  political  organization.  Viewing  the 
limitless  field  of  possible  activity  and  the  varied  impulses  that 
representatives  from  all  parts  of  a  great  country  bring  to- 
gether, it  is  not  surprising  that  schemes  in  endless  variety 
are  presented  for  consideration.  As  a  condition  precedent  to 
any  improvement  there  must  be  a  suggestion  of  something 
new.  On  the  other  hand,  in  order  to  proceed  sdfely,  it  is 
necessary  that  a  new  rule  of  action,  to  be  followed  by  many 
or  all,  should  be  well  understood  by  those  it  affects.  So,  much 
discussion  and  consideration  of  new  projects  is  indispensable. 
The  reformer,  imbued  with  the  great  value  of  his  scheme  is 
anxious  to  have  it  put  into  immediate  operation,  while  the 
conservative  objects,  inquires  and  hesitates  till  thoroughly  con- 
vinced that  it  is  good.  The  friction  caused  by  the  ardor  of 
those  who  propose  and  the  immobility  of  those  who  resist 
often  produces  heat  and  sometimes  conflagrations;  yet  the 
best  results  seem  to  call  for  something  of  this  process,  fol- 
lowed by  a  general  agreement.  Before  any  great  change  in 
the  order  of  things  can  be  of  full  benefit,  it  is  necessary  to 
prepare  the  public  mind  for  it  and  educate  the  people  to  act 


34      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  accordance  with  it.  The  French  revolution  clearly  exhibits 
the  force  of  habit  and  education  in  continuing  bad  systems  in 
spite  of  sweeping  reforms  devised  and  put  forth  by  the  legis- 
lative power.  Men  who  had  been  long  accustomed  to  obey 
a  master  could  not  at  once  find  prosperity  in  liberty.  The 
laborer,  who  has  always  performed  tasks  under  a  master  for 
wages,  may  be  and  often  is  incapable  of  conducting  a  business 
of  his  own  with  any  degree  of  success.  He  may  utterly  fail 
to  obtain  the  materials  necessary  for  his  employment  at  the 
only  work  he  knows  how  to  do.  The  greatest  human  achieve- 
ments requiring  the  combined  efforts  of  many  are  only  pos- 
sible of  accomplishment  by  specialization  and  division,  of 
labor.  To  each  participant  some  part  must  be  assigned  which 
he  fully  understands.  There  must  be  intelligent  leadership, 
causing  all  to  move  harmoniously  with  strength  united  and 
not  opposing  the  force  of  one  to  another.  The  distribution 
of  the  profits  resulting  from  a  great  enterprise  may  be  most 
unequal  and  unjust,  so  that  those  who  furnish  the  capital  or 
direct  the  operations  receive  grossly  excessive  shares,  yet  if 
the  underpaid  laborers  are  incapable  of  carrying  on  the  busi- 
ness at  all  without  the  capital  or  supervision,  there  may  be  no 
other  alternative  but  to  continue  in  the  service  or  starve.  In 
all  attempts  to  substitute  a  just  for  an  unjust  system  it  is  "in- 
dispensable that  those  who  are  to  be  benefited  be  educated  to 
act  according  to  the  new  plan. 

In  despotic  countries  every  combination  of  the  people  not 
directly  authorized  by  the  government  is  looked  on  with  sus- 
picion as  likely  to  breed  resistance  of  arbitrary  power.  In 
the  most  advanced  states  the  various  forms  of  voluntary  or- 
ganization promoted  by  private  citizens  are  almost  innumer- 
able. Their  numbers  and  size  bear  evidence  of  the  increasing 
confidence  of  man  in  his  fellows,  as  well  as  of  growing 
capacity  for  combined  effort.  The  earliest  charters  in  Eng- 
land and  the  American  colonies  were  granted  by  the  crown  or 
act  of  Parliament  or  colonial  legislature  as  a  special  favor. 
Now  corporations  may  be  formed  under  general  laws  for 
designated  purposes,  and  in  many  states  the  only  limitation  of 
purposes  is  that  it  be  to  carry  on  a  lawful  business  or  for 


INTRODUCTIOX  35 

social,  religious  or  charitable  purposes.  In  recent  years  vast 
fortunes  have  been  accumulated  by  promoters  and  manipulat- 
ors of  corporations  by  more  or  less  dishonest  transactions  in 
their  stocks  and  bonds.  The  unscrupulous  men  and  the  im- 
morality of  their  methods  have  been  concealed  behind  the 
artificial  structure  of  the  corporation.  The  vast  aggregation 
of  capital  and  combination  of  men  under  the  control  of  the 
managers  of  the  great  business  corporations  in  the  United 
States  have  given  great  influence  to  them  in  political  and 
governmental  affairs.  All  departments  of  the  government 
have  been  more  or  less  tainted  by  their  insidious  and  often 
corrupt  methods.  One  of  the  great  problems  now  promi- 
nently before  the  people  is  that  of  correcting  and  prohibiting 
the  abuses  connected  with  these  great  business  organizations 
without  impairing  their  usefulness.  This  cannot  be  done  by 
merely  regulating  the  affairs  of  the  corporation  itself  as  an 
entirety.  It  seems  more  important  just  now  to  regulate  the 
operations  of  the  men  who  manipulate  corporations  and  their 
stock  and  bonds,  and  by  indirection  fleece  the  general  public 
and  oppress  the  employees  of  the  company.  The  immorality 
lies  in  the  acquisition  of  unearned  fortunes  by  cunning  and 
fraud.  Even  when  the  people  are  fairly  informed  concerning 
the  evils  to  be  remedied,  the  practical  difficulties  to  be  en- 
countered in  devising  remedies  to  overcome  the  most  power- 
ful and  wealthy  combinations  in  the  country  are  very  great. 
Inordinate  private  fortunes  are  unhealthy  in  their  tendencies 
and  influence  on  the  body  politic.  The  simple  and  direct 
method  of  dissipating  them  is  by  the  use  of  the  taxing  power. 
Legislatures  deal  with  existing  conditions.  It  is  idle  to 
denounce  penalties  against  crimes  that  no  one  commits,  or 
that  are  so  rare  as  to  be  negligible.  Laws  affecting  property 
and  contract  rights  must  be  adapted  to  needs  either  present 
or  plainly  foreseen.  Men  differ  widely  in  their  views  on  the 
abstract  questions  of  ethics  involved  in  the  distribution  of  the 
proceeds  of  enterprises  to  which  many  persons  contribute  in 
various  ways.  One  fundamental  proposition  seems  to  be 
commonly  overlooked.  A  just  claim  to  wealth  in  excess  of  a 
fair  share  of  the  face  of  the  earth,  its  natural  products  and 


36  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  fruits  of  the  toil  of  past  generations,  must  be  based  on 
the  personal  services  of  the  claimant.  This  of  course  ex- 
cludes from  view  the  claims  of  the  helpless  and  dependent, 
and  applies  only  to  those  able  to  do  useful  service.  Service 
meriting  reward  may  be  rendered  in  any  useful  form  of 
mental  or  physical  activity,  but  it  must  be  personal  service  of 
the  claimant.  In  morals  there  can  be  no  such  thing  as  vicar- 
ious earnings.  Personal  merit  affords  the  only  possible  basis 
for  a  just  claim  of  reward.  The  ways  in  which  one  may  be 
serviceable  to  his  fellow  men  are  numberless,  and  in  the 
multiplicity  and  complication  of  human  affairs  the  value  of 
the  service  and  the  designation  of  the  persons  who  ought  to 
give  the  compensation  for  it,  are  often  so  uncertain  and  ob- 
scure that  no  definite  rule  can  be  announced.  In  this  situation 
the  best  that  can  be  reasonably  demanded  is  a  fair  approxi- 
mation to  a  just  and  uniform  rule.  Yet  in  no  country  are 
the  laws  based  on  a  theory  requiring  personal  merit  as  a  basis 
of  property  rights.  In  the  United  States  unlimited  land  mo- 
nopoly is  allowed  and  protected.  The  only  limitations  on  the 
amount  and  kind  of  land  over  which  one  may  exercise  abso- 
luate  dominion  are  ability  to  purchase  or  otherwise  acquire 
title  and  liability  to  taxation  and  the  exercise  of  the  power  of 
eminent  domain  under  which  it  may  be  purchased  for  strictly 
public  uses.  In  nearly  or  quite  all  civilized  countries  the  title 
to  land  and  movables  also  passes  by  inheritance  or  will  to 
designated  persons,  wholly  without  regard  to  merit,  needs, 
amount  and  capacity  or  disposition  to  use  properly.  A  small 
inheritance  tax  is  sometimes  imposed,  but  this  does  not  ma- 
terially affect  the  general  proposition.  On  the  other  hand  a 
very  large  part  of  the  people  have  no  land,  no  money  to  buy 
it  with  and  no  capital  of  any  kind.  Their  sole  dependence 
for  subsistence  is  on  employment  by  those  who  have  land  or 
other  capital  for  wages.  For  a  dwelling  place  they  are  de- 
pendent on  the  terms  imposed  by  landlords  and  their  ability 
to  get  wages  enough  to  satisfy  their  demands.  These  con- 
ditions exist  because  the  law  allows  them.  Are  the  laws  just 
in  these  respects?  Monopohes  of  coal,  oil,  gas,  iron,  copper 
and  other  mineral  products,  and  of  water,  waterpower,  trans- 


INTRODUCTION  37 

portation  lines,  means  of  transmitting  intelligence,  trade  and 
industry,  all  rest  on  a  similar  basis.  The  law  and  the  power 
of  the  state  protects  them.  The  courts  confirm  their  titles  and 
enforce  their  contracts  without  regard  to  public  interests. 
Established  legal  theories  and  rules  are  followed  without  re- 
gard to  fundamental  moral  principles.  Justice  demands  more 
than  that  the  destitute  citizen  shall  have  freedom  to  make  such 
contracts  for  his  services  as  he  can.  It  requires  that  it  be 
made  possible  for  him  to  make  just  contracts  through  which 
he  can  obtain  the  fair  value  of  his  services.  Justice  also  de- 
mands that  the  product  of  his  service  shall  go  to  the  one  for 
whose  ultimate  use  it  is  performed  without  the  addition  of 
any  unmerited  profit  to  the  employer  or  exploiter.  Monopoly 
of  every  kind  stands  between  the  producing  and  consuming 
classes  and  extorts  that  which  it  has  not  earned  and  does  not 
merit.  The  law-making  power  is  responsible  for  the  existence 
of  every  form  of  monopoly.  It  actively  promotes  or  passively 
tolerates  every  vice  that  inheres  in  monopoly.  In  the  final 
analysis  it  will  be  found  that  every  form  of  special  privilege 
and  unjust  advantage  has  its  root  in  the  law  and  endures 
only  because  it  is  protected  by  the  public  force.  The  socialists 
point  out  the  injustice  of  the  exploitation  of  labor  by  those 
who  control  the  capital.  The  remedy  they  propose  is  a  com- 
plete reorganization  of  society.  One  may  readily  concede  the 
soundness  of  their  criticisms  on  the  injustices  of  existing 
systems  without  approving  the  expedients  by  which  they  pro- 
pose to  remedy  them.  It  may  be  that  progress  toward  con- 
ditions of  ideal  justice  can  be  made  more  rapidly  by  the  use 
of  other  expedients  for  which  the  people  are  better  prepared 
by  custom  and  education.  The  single  tax  may  tend  to  un- 
dermine land  monopoly,  but  will  it  prevent  further  exploita- 
tion of  labor?  The  value  of  expedients  is  and  in  the  nature 
of  things  must  always  be  more  or  less  experimental.  The  ulti- 
mate moral  purposes  to  be  accomplished  by  the  legislatures 
will  remain  approximately  constant.  Experience  abundantly 
proves  the  inertia  and  resisting  power  of  habit  and  the  ex- 
treme difficulty  of  successfully  operating  a  new  system  for 
which  the  multitude  are  unprepared.     On  the  other  hand,  no 


38      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

matter  what  the  form  of  government  or  plan  of  social  organi- 
zation, evils  clearly  defined  and  persistently  pointed  out  by 
those  in  a  position  to  influence  the  governing  body  may  always 
be  remedied  without  disrupting  the  bonds-  of  social  order  to 
which  the  people  are  accustomed.  Revolution,  for  which  the 
people  are  fully  educated,  may  accomplish  great  reforms  sud- 
denly, but  revolution  for  which  the  people  are  unprepared  is 
quite  as  likely  to  retard  as  to  advance  the  cause  of  justice. 

The  forms  in  which  unmerited  revenues  are  now  drawn 
from  accumulated  wealth  are  mainly  rent,  interest  and  divi- 
dends on  corporate  stocks.  Rent  and  usury  are  old  forms  of 
revenue  and  have  been  declaimed  against  from  very  early 
times.  It  is  only  recently  that  corporate  stocks  have  become 
conspicuous.  Numberless  laws  have  been  promulgated  against 
usury,  varying  in  terms  all  the  way  from  absolute  prohibition 
cf  all  interest  to  the  allowance  of  all  the  parties  agreed  upon. 
Rent  has  often  been  declaimed  against  as  robbery.  The  de- 
fect in  the  reasoning  of  those  who  challenge  the  rightfulness 
of  claims  to  interest  and  rent  is  mainly  in  the  failure  to  go 
back  to  the  right  starting  point.  The  necessity  for  capital  in 
all  business  enterprises  and  the  universal  custom  of  giving 
its  owner  compensation  for  its  use  show  a  general  recognition 
of  the  merits  of  economy  and  prudence  in  the  accumulation 
and  preservation  of  property.  The  service  of  preserving  the 
grain  after  it  is  harvested  is  as  useful  as  that  of  raising  the 
crop.  He  who  performs  this  service  is  entitled  to  his  reward. 
Economy  in  use  is  a  merit  to  be  compensated  with  the  savings. 
But  property  unjustly  acquired,  or  gained  by  accident  of  birth 
or  favor,  affords  no  just  basis  for  an  income  in  any  form, 
except  as  the  possessor  earns  it  by  his  own  efforts  combined 
with  it  as  capital. 

Unearned  wealth,  no  matter  how  it  may  have  been  acquired, 
is  usually  either  soon  squandered  or  invested  in  land,  interest 
bearing  securities  or  corporate  stocks.  Modern  exotic  for- 
tunes are  all  largely  made  up  of  such  investments.  The  in- 
comes of  the  owners  derived  from  the  rents,  interest  and 
dividends  produced  from  such  investments  is  then  unearned 
tribute  paid  to  the  investors.     The  unjust  burden  may  not 


INTRODUCTION  39 

fall  on  the  ones  who  make  the  final  payments.  It  may  and 
often  does  happen  that  they  in  fact  profit  from  holding  an 
intermediate  position  and  that  the  real  burden  is  passed  on  to 
others.  This  may  be  illustrated  by  an  investment  made  in 
the  bonds  of  a  manufacturing  company  owned  by  a  stock 
gambler,  who  acquired  his  wealth  by  fraudulent  dealings  in 
the  stock  market.  The  manufacturing  company  by  use  of 
the  capital  in  a  business  protected  by  the  government  or  so 
overgrown  as  to  become  a  monopoly,  may  extort  inordinate 
profits  from  the  general  public  consuming  its  products  and 
make  profits  on  the  borrowed  capital  largely  in  excess  of  the 
interest  paid,  or  by  monopoly  of  the  labor  market  may  with- 
hold from  its  employees  revenue  that  justly  should  go  to 
them  as  wages.  In  such  cases  the  burden  of  the  interest  is 
passed  on  to  third  persons  with  the  addition  of  the  company's 
extortions,  and  both  borrower  and  lender  gain  unearned 
revenue.  Similarly  a  railroad  company  may  extort  excessive 
income  through  its  transportation  monopoly  or  withhold  fair 
wages  from  its  employees,  and  after  paying  interest  on  all 
its  invested  capital,  pay  dividends  on  stocks  for  which  nothing 
was  paid  and  which  therefore  represent  no  investment.  The 
unearned  interest  on  unearned  wealth,  so  invested  and  used, 
is  thus  paid  a  prosperous  company  out  of  funds  derived  from 
others.  Similar  illustrations  might  be  made  of  the  passing 
on  to  third  persons  of  the  burdens  of  rent  and  dividends  on 
stocks.  The  farther  the  person  who  ultimately  bears  the  un- 
just burden  is  removed  from  the  ulitmate  beneficiary  of  it  the 
more  the  injustice  is  obscured  and  the  greater  the  difficulty  in 
obtaining  redress.  The  real  burden  in  all  such  cases  rests  on 
the  consumer  or  the  laborer  or  both.  The  vice  does  not  in- 
here in  rent,  interest  or  dividends  as  such,  but  in  the  lack  of 
moral  basis  for  a  demand  of  any  payment  in  any  form  to  the 
beneficiary.  It  is. because  the  property  from  which  they  are 
derived  is  an  unjust  acquisition  rather  than  that  rent,  interest 
and  dividends  are  essentially  unjust  in  their  nature. 

The  inception  of  title  to  unearned  wealth  everywhere  is 
largely  due  to  governmental  favoritism,  monopoly,  speculative 
operations  in  which  there  is  an  element  of  fraud,  breach  of 


40  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

confidence  or  extortion,  gambling  and  trade  operations  having 
gambling  characteristics,  and  corporate  favoritisms  and 
manipulations.  Such  gains  are  all  clearly  immoral,  and  if 
full  justice  were  practicable  should  be  returned  to  the  sources 
from  which  they  were  derived.  Great  gains  not  infrequently 
come  from  fortunate  ventures  in  mining  and  legitimate  trade 
and  manufacturing,  and  from  great  inventions.  The  point 
at  which  such  accumulations  become  unwholesome  and  detri- 
mental to  the  public  interest  is  not  easy  to  define.  Perhaps 
it  may  safely  be  said  that  this  point  is  not  reached  until  there 
is  an  element  of  monopoly  or  oppression  attending  the  pos- 
session. So  long  as  the  use  made  of  them  promotes  the  gen- 
eral welfare  there  would  seem  to  be  no  ground  for  public 
interference  beyond  the  imposition  of  taxes.  Ownership  of 
land  which  the  owner  does  not  occupy  or  improve  and  for 
which  he  merely  takes  ground  rent,  partakes  of  the  nature  of 
monopoly.  The  universal  need  of  an  abiding  place  on  the 
face  of  the  earth  and  of  resort  to  its  natural  wealth  for 
subsistence  renders  land  monopoly  peculiarly  oppressive.  The 
safety  and  permanence  of  investments  in  land  make  them  at- 
tractive to  people  having  surplus  means.  Pride  also  is  grati- 
fied by  the  possession  of  large  estates.  These  influences 
operate  everywhere  and  the  extention  of  the  power  of  the 
wealthy  by  monopoly  of  the  land  goes  on  more  rapidly  in  the 
United  States  than  in  any  other  great  country  because  the 
conditions  favor  rapid  accumulation  of  wealth  and  there  is 
full  liberty  to  make  unlimited  investment  of  profits  in  land. 
Monopoly  of  particular  products  and  Hnes  of  business  is  more 
noticeable  and  therefore  more  discussed,  but  it  lacks  the  per- 
manence and  fundamental  character  of  land  monopoly.  Mo- 
nopoly of  money  and  credits,  while  not  impossible,  is  more 
difficult  of  accomplishment.  It  is  always  -only  partial  and 
temporary,  but  extremely  disasterous  in  its  effects. 

It  is  manifest  that  if  property  rights  were  determined  by 
the  rules  of  pure  ethics,  monopolistic  extortion  or  any  sort 
of  fraud  or  crime  would  confer  no  title.  If  the  law-making 
power  were  chargeable  with  the  duty  to  make  provision  for 
righting  every  wrong,  it  would  be  necessary  to  have  inquiry 


IXTRODUCTIOX  41 

made  into  the  sources  of  title  to  all  property  acquired  through 
any  such  immoral  means  and  make  full  restitution  to  all  who 
had  been  injured.  While  it  is  not  to  be  expected  that  any 
system  of  governmental  control  will  in  practice  work  out  ideal 
justice  in  every  case,  it  would  seem  that  in  theory  at  least  the 
rules  of  law  should  cover  the  whole  field  of  ethical  principles. 
The  moral  law  also  has  its  prohibitions  and  negations  and 
forbids  the  doing  of  positive  wrongs.  The  moral  law  forbids 
the  legislature  to  promulgate  any  law  the  natural  effect  of 
which  is  to  produce  unfair  conditions  for  or  unjust  relations 
between  any  of  the  people.  Yet  the  history  of  the  world  is 
full  of  instances  in  which  the  law  itself  has  directly  author- 
ized the  grossest  possible  oppression.  Slavery  has  always 
required  the  aid  of  the  state  in  enforcing  the  dominion  of 
the  masters.  The  state  thus  became  fully  responsible  for  all 
the  immoralities  of  slavery.  The  state  by  its  laws  determines 
how  title  to  the  face  of  the  earth  may  be  acquired,  transferred 
and  enjoyed.  The  vices  of  the  feudal  system,  which  virtually 
made  the  lords  of  the  manors  masters  and  the  tenants  on 
their  estates  slaves,  were  the  vices  of  the  state  and  perpetuated 
by  its  laws.  Modern  great  corporations  are  mere  creatures 
of  the  law,  called  into  being  by  it,  and  with  no  power  or 
vitality  beyond  that  given  them  by  the  state.  They  require 
the  active  intervention  of  the  courts  and  officers  of  the  law 
to  protect  them  in  the  exercise  of  their  functions.  The  great 
land  owner  requires  the  strong  arm  of  the  law  to  dispossess 
tenants  who  will  not  comply  with  his  terms.  In  free  America 
he  may  drive  everybody  from  his  land  who  will  not  pay  the 
rent  he  demands,  and  in  doing  this  the  state  is  his  servant  and 
executes  his  commands  in  accordance  with  the  theory  of  his 
absolute  dominion  over  so  much  of  the  face  of  the  earth  as 
he  has  lawful  title  to.  Monopolies  of  all  kinds  and  sorts  are 
either  created  or  allowed  by  the  state,  and  are  always  depend- 
ent on  its  protection.  The  government  then  is  directly  re- 
sponsible for  all  the  wrongs  and  immoralities  authorized  by 
it  or  which  are  necessary  incidents  of  them.  It  can  no  more 
escape  responsibility  for  the  injustice  which  results  from  its 
laws  of  property  than  from  that  which  inheres  in  the  institu- 
tion of  slavery. 


42  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  general  run  of  legislative  enactments  deals  merely 
with  details  and  incidents  of  the  existing  system.  Funda- 
mentals are  seldom  considered  unless  brought  to  view  by  some 
political  upheaval.  But  in  dealing  with  incidents  and  details 
the  compass  and  chart  of  ethical  principles  should  always  be 
looked  to  for  safe  guidance  in  the  right  direction.  Sound 
morality  is  not  to  be  confined  in  the  homes  or  the  promulga- 
tion of  it  left  exclusively  to  religious  teachers.  The  legisla- 
ture is  not  only  itself  morally  bound  to  follow  ethical 
principles  in  all  its  enactments,  but  in  order  '*to  promote  the 
general  welfare"  is  also  charged  with  the  duty  to  exert  its 
full  powers  in  the  dissemination  of  such  principles  and  pro- 
curing the  observance  of  them.  Ethical  principles  are  not 
necessarily  rules  of  cold,  hard  and  gloomy  morality,  denying 
all  pleasure  and  requiring  mortification  of  the  flesh  without 
leason.  They  are  the  rules  that  bring  to  humanity  the  maxi- 
mum of  love,  joy  and  exuberant  life,  so  ordered  that  these 
blessings  propagate  their  kind,  continue  and  multiply  in  'all 
directions. 

It  may  be  said  that  this  is  the  domain  of  religion  and  of 
parental  instruction  rather  than  of  governmental  direction. 
True  religion  of  course  teaches  the  immutable  laws  of  the 
creator,  which  cannot  be  other  than  the  living  moral  law. 
The  most  serious  objection  to  religious  teaching  is  that  its 
doctrines  are  asserted  dogmatically,  as  having  divine  sanction 
and  admitting  no  possible  errors.  Religious  establishments 
are  subject  to  many  of  the  evil  influences  that  affect  secular 
governments.  The  men  who  direct  their  affairs  resort  to 
human  expedients  for  their  personal  gratification  and  pro- 
mulgate falsehood  and  immorality  as  having  divine  sanction. 
The  mere  claim  of  divine  authority  for  their  teachings  re- 
sults in  many  places  and  for  long  periods  of  time  in  precluding 
inquiry  into  the  truth  of  them.  Fair  illustrations  of  the  ex- 
treme aberrations  of  the  religious  hierarchies  are  in  the  sacri- 
fices of  the  ancient  Mexicans,  the  Druids,  the  Hindoo  sati, 
the  Holy  Inquisition  of  the  Church  of  Rome  a  fe\v  centuries 
ago  with  the  frightful  torture  and  burning  at  the  stake  of 
innocent  men  for  the  fictitious  crime  of  heresy,  and  the  Mo- 


INTRODUCTION  43 

hammedan  propagation  of  the  word  by  the  sword.  Less 
vicious  are  the  more  modern  extortions  of  contributions  from 
needy  people  to  maintain  the  pomp  and  magnificense  of  church 
estabhshment,  ceremonial  and  priestly  trappings;  supersti- 
tious awe  of  beasts,  birds  and  reptiles  as  in  India  and  ancient 
Egypt  and  the  worship  of  idols,  immages,  relics  and  symbols. 
With  such  forms  of  darkness  religious  law-givers  have  ob- 
scured the  light  and  beauty  of  life.  The  overshadowing  fault 
of  all  great  religious  systems  is  that  they  constantly  claim 
divine  authority  and  sanction  for  falsehood  and  a  divine 
commission  to  close  the  door  against  all  searchers  for  truth. 
The  responsibility  for  the  good  conduct  of  each  individual 
rests  primarily  with  himself.  The  ideal  state  of  society  is 
one  in  which  each  person  of  his  own  accord  adheres  strictly 
to  the  moral  law  and  discharges  all  his  social  duties.  What- 
ever the  form"  of  government  or  the  system  of  laws  promul- 
gated by  the  legislative  power,  the  heart  and  life  of  society 
will  still  depend  on  the  general  average  of  voluntary  indi- 
vidual conduct.  Wherever  there  is  a  general  disposition  to 
be  just,  helpful  and  cheerful,  there  will  be  little  need  of  legis- 
lative rules  to  supplement  the  moral  law.  On  the  other  hand, 
where  avarice,  hatred  and  distrust  prevail,  no  governmental 
supervision  can  possibly  fill  the  requirement. 

Legislative  Expedients 

The  legitimate  field  of  legislative  expedients  is  of  vast  di- 
mensions and  one  in  which  law-makers  may  still  find  ample 
employment  after  it  ceases  to  be  necessary  to  direct  the  morals 
of  the  people.  Where  men  combine  for  the  common  good,  it 
is  necessary  to  determine  the  form  of  the  combination  and 
the  part  to  be  performed  by  each  participant.  The  national 
government  of  the  United  States  is  a  combination  for  cer- 
tain general  purposes.  The  framers  of  the  constitution  dealt 
mainly,  almost  exclusively,  with  questions  of  expediency  in 
providing  instrumentalities  to  carry  out  these  purposes.  They 
established  executive,  legislative  and  judicial  agencies  to 
severally  perform  specific  functions.  Instead  of  combining 
all  powers  in  one  man  or  set  of  men  they  divided  them  so 


44  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

that  each  should  be  a  check  on  the  other.  They  vested 
the  executive  power  in  a  president,  the  legislative  power  in 
Congress,  and  the  judicial  power  in  courts.  In  forming 
Congress  of  two  houses  differently  chosen  they  acted  wholly 
on  considerations  of  expediency.  There  is  no  moral  ques- 
tion involved  in  the  distribution  of  the  powers  of  gov- 
ernment among  the  three  coordinate  branches,  but  it  was 
deemed  wise  to  do  so,  mainly  because  experience  had  shown 
that  where  all  the  powers  were  combined,  personal  interests, 
ambitions  and  passions  often. dictated  governmental  policy  to 
the  public  detriment.  It  was  thought  that  by  a  division  of 
powers  each  branch  of  the  government  would  act  as  a  check 
on  the  others  to  confine  them  to  the  performance  of  the  bene- 
ficial functions  for  which  they  were  established.  With  such 
a  distribution  of  powers  public  expediency  is  deemed  more 
likely  to  find  expression  through  the  public  agencies  than  mere 
personal  expediency.  Similar  principles  were  applied  in  the 
state  constitutions.  Acting  under  these  constitutions  law- 
making bodies  have  established  public  agencies  of  various 
kinds.  Most  of  these  are  deemed  necessary  for  the  public 
welfare.  Some  are  places  created  for  favorites,  and  others 
to  promote  party,  rather  than  public,  ends.  Here  personal  ex- 
pediency overrides  not  only  public  expediency  but  also  the 
moral  law. 

As  governments  slough  off  their  warlike  and  vindicitive 
functions  and  take  on  more  beneficent  ones,  an  ever  widening 
field  of  possible  usefulness  is  presented.  As  sentiments  of 
hatred  diminish  and  kindness  and  mutual  confidence  increase, 
the  necessity  for  war  passes  away  and  men  of  all  countries 
join  in  all  kinds  of  religious,  charitable,  social  and  business 
organizations.  The  law-making  power  has  much  concern 
with  great  private  combinations.  In  despotic  countries  they 
are  viewed  with  suspicion  because  they  may  possibly  conceal 
revolutionary  schemes.  In  the  United  States  great  business 
con:ibinations  exert  undue  influence  on  Congress,  state  legis- 
latures and  administrative  officers.  The  practical  question 
how  the  beneficial  activities  of  all  such  combinations  can  best 
be  preserved  and  promoted  and  their  evil  tendencies  curbed 


INTRODUCTION  45 

is  one  of  much  difficulty.  The  measure  of  Hberty  to  be  ac- 
corded to  all  citizens  in  forming  combinations  for  lawful 
purposes  is  a  question  of  expediency  to  be  determined  by  the 
legislative  power.  It  is  also  a  question  of  expediency  as  to 
how  and  to  what  extent  their  operations  should  be  supervised 
by  the  government. 

In  reference  to  the  useful  functions  which  the  state  itself 
should  assume  as  a  political  organization  there  is  extreme  di- 
versity of  opinion,  ranging  all  the  way  from  curtailment  of 
the  powers  now  exercised  by  the  government  to  the  schemes 
of  the  socialists  and  communists  who  would  have  state  man- 
agement of  most  or  all  industries  and  common  ownership  of 
land  and  capital  employed  in  industries.  Shall  the  state  own 
and  operate  railroads,  telegraphs,  telephones,  mines,  factories, 
ships,  farms,  stores,  warehouses,  banks,  waterworks,  gas, 
light,  heat  and  power  plants,  build  dwellings,  carry  on  the 
business  of  insurance,  maintain  hospitals  and  provide  medi- 
cal treatment  for  the  sick;  in  fine  what  and  how  much  much 
if  any  of  the  businesses  now  conducted  by  private  persons 
ought  the  state  to  undertake  ?  These  questions  have  provoked 
many  hot  discussions,  conflicts  and  some  bloodshed.  Men 
sometimes  treat  them  as  involving  vital  questions  of  morals. 
They  are  in  fact  mere  questions  of  expediency,  experimental 
in  their  nature,  more  or  less  temporary  in  character,  and 
reasonably  certain  of  kaleidoscopic  changes  of  aspect.  Har- 
monious concert  of  action  for  the  accomplishment  of  desirable 
ends  is  the  great  desideratum.  Expediency  must  find  the 
way  for  it,  not  partial  selfish  expediency,  but  just  public  ex- 
pediency. The  moral  law  applies  to  all  people  at  all  times 
and  under  all  circumstances.  Expediency  is  special,  tempo- 
rary and  must  be  adapted  to  conditions.  In  determining 
what  tasks  may  safely  be  assigned  to  a  person  it  is  necessary 
to  know  his  physical,  mental  and  moral  strength,  his  habits  of 
body  and  mind,  his  purposes  and  desires,  the  influences  with 
which  he  is  surrounded,  the  education  he  has  received  and 
every  other  circumstance  likely  to  affect  his  conduct.  It  is 
possible  to  utilize  men  of  every  grade  and  kind.  The  difficulty 
lies  in  putting  each  in  his  appropriate  place  and  keeping  him 


46  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

there.     Concert  of  action  among  many  implies  specialization 
and  leadership.     How  shall  the  leaders  be  chosen?    In  enter- 
prises conducted  by  the  government  they  are  appointed  by 
public  authority  or  elected  by  the  people.     In  those  carried  on 
by  private  persons  the  general  rule  is  that  those  v^ho  furnish 
the  capital  determine  the  plan  of  organization  and  make  the 
selection  of  leaders.    In  cooperative  enterprises  those  who  are 
served  by  the  organization  select  their  agents  and  direct  their 
work.     The  United  States  now  exhibits  the  greatest  business 
combinations  under  private  management  that  have  ever  been 
known.     Ancient  Peru  affords  an  illustration  of  the  most 
advanced  governmental  direction  of  industry  that  we  have 
any  account  of.     Under  the  despotism  of  the  Incas  a  people 
completely  isolated  from  all  other  civilized  nations,  without 
knowledge  of  letters  or  the  use  of  iron,  without  horses  or 
cattle  or  any  of  the  modern  mechanical  inventions,  tilled  the 
soil,  built  temples  and  dwellings,  roads,   bridges  and  great 
stone  aqueducts,  wove  fabrics  for  clothing  and  decorations, 
defended  themselves  against  their  savage  neighbors  and  lived 
in  plenty  and  security.     The  government  was  one  great  busi- 
ness organization  in  which  every  officer  had  useful  functions 
to  perform  for  the  general  good.    All  were  required  to  marry, 
and  all  were  furnished  homes  and  land  to  till.     There  were 
no  landlords  to  collect  rent,  no  usurers  to  extort  interest,  no 
promoters  taking  anticipated  profits  of  labor,  no  exploiters 
monopolizing  natural  resources.     Every  one  had  his  share  of 
the  land  assigned  to  him  each  year  and  his  share  of  the  pro- 
ducts of  the  shearing  of  the  flocks,  and  of  the  mines  and  the 
fisheries.    There  were  no  rich  living  from  the  labors  of  others, 
no  paupers,  no  beggars,  no  prostitutes.     With  the  added  ad- 
vantages of  modern  inventions  what  would  they  have  accomp- 
lished and  how  would  they  have  lived?     How  much  of  their 
system  could  be  successfully  adapted  to  modern  conditions 
under  free  institutions  and  among  people  who  deny  the  di- 
vinity of  all  priestly  establishments?     If  the  tie  of  common 
brotherhood  could  be  recognized  by  all  in  its   fullness   and 
entirety  the  difficulty  might  vanish,  but  unfortunately  we  are 
now  very   far   from  it.     We  are  however  rapidly  breaking 


INTRODUCTION  47 

down  the  walls  of  prejudice  that  have  so  long  separated  and 
antagonized  the  nations  with  each  other.  Already  there  is  a 
faint  perception  of  a  universal  bond  of  human  fellowship. 
The  telegraph,  telephone,  printing  press,  railroad  and  steam- 
boat, make  near  neighbors  of  the  most  distant  people.  Busi- 
ness combinations  are  not  confined  within  a  city,  county,  state 
or  nation,  but  some  of  them  are  world  wide.  Men  of  all  races 
and  nationalities  unite  their  efforts  in  carrying  them  on.  The 
International  Postal  Union  transports  and  dehvers  mail  in 
every  part  of  the  civilized  world  at  the  least  possible  expense. 
This  is  a  purely  public  expedient,  adopted  and  utilized  by  the 
governments  of  all  the  nations.  It  conducts  the  greatest  busi- 
ness enterprise  ever  organized.  The  railroads  are  operated 
by  the  governments  in  some  countries  and  by  private  corpora- 
tions in  others.  In  Europe  the  telegraphs  are  mostly  owned 
by  the  government.  In  the  United  States  they  are  owned  by 
private  monopolies.  We  have  transportation  companies, 
manufacturing  and  mining  companies  in  great  number,  among 
which  are  many  which  severally  employ  tens  of  thousands  of 
men  of  all  races  gathered  from  all  the  quarters  of  the  globe. 
We  also  have  ship  yards  and  other  great  establishments  oper- 
ated by  the  government.  Our  great  works  in  our  harbors  and 
rivers  are  carried  on  by  the  government,  which  also  maintains 
lighthouses  and  life-saving  stations.  Public  roads  and  bridges 
other  than  those  used  for  railroads  are  built  and  maintained 
by  the  public.  It  is  needless  to  multiply  illustrations  in  order 
to  show  that  great  businesses  may  be  carried  on  successfully 
either  by  the  state,  nation  or  private  combinations.  It  is  some- 
times assumed  that  there  is  a  difference  in  the  nature  of  the 
businesses  which  are  successfully  carried  on  by  public  authori- 
ties and  of  those  under  private  management,  but  is  there  any 
fundamental  distinction  of  kind?  Is  there  in  the  nature  of 
things  an  essential  difference  between  the  business  of  trans- 
porting and  delivering  packages  weighing  an  ounce  and  those 
weighing  one  or  ten  pounds?  Is  there  a  fundamental  differ- 
ence between  the  business  carried  on  in  a  mail  car  and  that  in 
an  express  car?  Is  the  business  of  transporting  persons  and 
property  essentially  different  in  its  nature  from  that  of  carry- 


48  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  the  mails?  Is  there  an  essential  difference  between  the 
business  of  building  ships  for  war  and  that  of  building  them 
for  commercial  uses?  Is  there  a  difference  of  kind  between 
the  business  of  casting  guns,  making  armor  plate  and  gun 
carriages  and  that  of  making  steel  rails  and  railroad  cars  ?  In 
producing  and  transporting  military  supplies  of  all  kinds 
governments  undertake  and  carry  on  any  branch  of  business 
that  seems  necessary  to  meet  the  emergency.  Under  the  pres- 
sure of  war's  exigencies  they  throw  to  the  wind  all  nice 
theories  concerning  such  matters  and  adopt  such  expedients 
and  methods  as  seem  best  calculated  at  the  time  to  accomplish 
the  desired  results.  Is  there  a  fundamental  difference  between 
the  production  of  instruments  of  destruction  and  of  those  for 
beneficial  use?  Manifestly  it  is  not  a  question  of  principle 
or  morals  but  merely  of  expediency.  It  is  for  the  law-making 
power  to  adopt  whatever  plan  appears  to  be  the  best  adapted 
to  accomplish  the  public  purposes. 

But  what  are  public  purposes  as  distinguished  from  private 
ones?  Of  late  a  distinction  has  been  drawn  between  private 
businesses  affected  with  a  public  use  and  those  not  so  affected. 
Based  on  this  distinction  laws  have  been  enacted  providing 
for  the  regulation  of  some  businesses  affected  with  a  public 
use,  and  the  power  to  similarly  regulate  those  not  so  affected 
has  been  denied.  The  specialization  of  industry  makes  all  the 
people  of  a  highly  civilized  state  interdependent.  All  are  de- 
pendent on  the  products  of  agriculture  for  subsistence.  Re- 
striction of  production  may  mean  scarcity,  high  prices  or 
famine.  All  are  dependent  on  the  manufacturers  for  cloth- 
ing and  household  goods.  An  abundance  at  low  cost  is  de- 
sired by  all  consumers.  Any  combination,  regulation  or 
restriction  on  manufacturing  activity  that  reduces  production 
below  the  public  requirements  or  artificially  advances  prices 
above  a  just  compensation  for  the  service  is  detrimental  to  the 
public  interest.  All  are  dependent  on  the  mines  for  supplies 
of  coal,  oil  and  metals.  Mining  monopolies  through  which 
unearned  wealth  is  extorted  from  consumers  are  matters  of 
public  concern.  It  follows  that  the  production"  of  mineral 
wealth  is  a  matter  of  general  interest  calling  for  legislative 


INTRODUCTION  49 

care.    All  are  dependent  on  the  railroads  as  well  as  the  other 
highways  of  commerce,  and  on  the  telegraph  and  telephone 
as  well  as  the  mails  for  means  of  inter-communication.     Sup- 
plies of  food  clothing  and  fuel  are  absolutely  dependent  on 
transportation  facilities.     Where  then  may  a  line  be  drawn 
between  one  part  of  these  lines  of  business  and  the  other 
distinguishing  that  affected  with  a  public  use  from  that  not 
so  affected?     Can  such  a  line  be  drawn  elsewhere  than  be- 
tween all  the  productive  activities  on  the  one  side  and  the 
nonproductive  and  destructive  on  the  other?     Is  it  possible 
lo  eliminate  the  parasitic  classes,  which  now  absorb  so  much 
of  the  products  of  industry,  by  fully  protecting  the  useful  ones 
against  their  methods?     Could  modern  society  eliminate  its 
drones  -and  barnacles  with  as  great  success  as  ancient  Peru? 
The  great  moral  purpose  to  be  kept  constantly  in  view  by 
the  law-making  power  is  to  bring  about  a  constantly  nearing 
approximation  to  conditions  affording  substantial  justice  be- 
tween all   the  people,   individually  and  collectively,   and   the 
most  ample  provision  for  their  physical,  mental  and  moral  wel- 
fare.    Elsewhere  than  in  ancient  Peru  the  conduct  of  most 
productive   enterprises   has   always   been   left   under   private 
management  for  private  profit.     In  recent  years  business  com- 
binations of  all  kinds,  but  more  especially  those  engaged  in 
transportation,   manufacturing,   mining   and   commerce   have 
taken  the  form  of  private  corporations.     Capital,  management, 
skill  and  labor  are  made  the  bases  for  the  distribution  of  the 
gains  of  the  common  enterprise,  with  the  result  that  the  bur- 
dens and  benefits  are  often  most  unequally  distributed.     It  is 
the  exclusion   from  these  combinations  of  all  altruistic  im- 
pulses, the  lack  of  human  sympathy,  that  gives  to  some  of 
them  their  cold  and  steely  character.     The  managing  power, 
the  board  of  directors,  is  almost  universally  merely  a  repre- 
sentative   of    the    stockholders,    who    have    contributed    the 
capital.     Neither  the  employees  nor  the  public  have  any  repre- 
sentation in  the  management,  nor  any  control  over  its  policy. 
The  employer  seems  to  be  the  natural  manager,  and  corpora- 
tions have  developed  along  what  appear  to  be  natural  lines.    It 
is  found,  however,  that  corporations  performing  functions  on 


50  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

which  the  pubHc  are  dependent,  and  which  are  either  natural 
or  artificial  monopolies,  may  become  oppressive,  and  that 
owners  may  ignore  not  only  altruism  but  justice  and  decency. 
When  such  conditions  are  presented  the  legislature  is  con- 
fronted with  the  practical  question  of  finding  an  efiicient 
remedy.  Will  it  undertake  to  supervise  and  reform  the  ex- 
isting system  or  substitute  a  new  one?  Can  it  convert  an 
oppressive,  dishonestly  managed  corporation  into  a  beneficent, 
honest  one  by  supervising  its  operations  ?  Can  public  agencies 
be  established  of  superior  efficiency  in  place  of  the  private 
ones?  The  modern  trend  of  legislation  in  the  United  States 
is  along  lines  of  supervision  rather  than  the  direct  assump- 
tion by  the  government  of  new  business  functions.  This  is 
attempted  in  two  ways;  by  general  laws  designed  to  regulate 
charges  for  service  to  the  public,  imposing  duties  to  be  per- 
formed and  forbidding  harmful  activities.  The  enforcement 
of  such  laws  as  to  most  classes  of  corporations  and  as  to  all 
classes  in  most  cases  is  left  to  the  courts  by  the  usual  methods. 
These  imply  a  complaint  on  the  part  of  the  United  States  or 
a  state  for  a  violation  of  a  penal  statute,  or  of  a  private  suitor 
for  the  enforcement  of  a  right  or  the  redress  of  a  wrong. 
Where  the  controversy  is  between  a  powerful  corporation  and 
a  private  citizen  of  moderate  means  results  are  not  satisfac- 
tory. The  great  corporation,  by  reason  of  the  number  of 
cases  brought  for  and  against  it,  is  represented  by  attorneys 
and  officers  who  become  familiar,  sometimes  too  familiar, 
with  the  judges.  The  private  citizen  is  not  ordinarily  so  rep- 
resented. Under  such  circumstances  favoritism  for  the  cor- 
poration is  often  charged,  especially  against  judges  holding 
by  life  tenure.  On  the  other  hand  juries  are  more  likely  to 
incline  toward  the  private  citizen,  and  elective  judges  are 
often  charged  with  seeking  popular  favor  at  the  expense  of 
unpopular  corporations.  Though  the  parties  to  such  contro- 
versies are  theoretically  equal  before  the  law,  they  are  not  so 
in  fact.  Recognizing  the  necessity  for  further  interference 
on  behalf  of  the  public,  Congress  has  provided  for  the  in- 
spection and  supervision  of  national  banks  by  the  Comptroller 
of  the  Currency,  and  the  states  have  adopted  a  smilar  system 


INTRODUCTION  5i 

of  regulating  state  banks  through  a  bank  commissioner.  The 
states  also  provide  a  similar  supervision  of  the  business  of 
insurance  through  their  insurance  departments.  j\Iore  re- 
cently Congress  has  provided  the  Interstate  Commerce  Com- 
mission for  the  regulation  of  the  business  of  common  carriers 
engaged  in  interstate  commerce,  and  many  of  the  states  have 
similar  commissions  to  supervise  such  carriers  within  the 
state.  In  a  few  states  the  functions  of  such  commissions  have 
been  extended  over  various  other  pubHc  utilities.  The  func- 
tions exercised  by  these  various  commissions  are  usually 
classed  as  executive  or  administrative,  but  it  is  found  by  ex- 
perience that  to  be  efficient  and  accomplish  satisfactorily  the 
purposes  for  which  they  are  designed,  it  is  necessary  that 
they  should  .also  have  other  powers  generally  regarded  as 
legislative  and  judicial.  Numerous  acts  creating  such  com- 
missions have  been  declared  unconstitutional  on  the  ground 
that  they  combined  and  confused  the  powers  of  the  three 
separate  coordinate  departments  of  the  government. 

The  purpose  of  mentioning  these  difficulties  here  is  to  show 
the  general  aspects  of  the  question  presented  to  the  law- 
making power  in  dealing  with  great  business  combinations. 
The  officers  and  commissions  mentioned  occupy  a  position  in 
the  governmental  systems  inferior  to  the  legislative  body,  in- 
ferior to  the  courts  and  to  the  chief  executive.  The  essence 
of  despotism  is  the  combination  of  all  kinds  of  political  power 
in  the  same  hands  without  any  superior  power  to  prevent 
abuses.  The  advantages  possible  to  be  derived  from  the  exer- 
cise of  despotic  power  are  promptness  and  efficiency.  A  com- 
mission authorized  to  make  rules  for  the  government  of  great 
business  enterprises  and  to  enforce  them  summarily  is  poten- 
tially capable  of  remedying  the  evils  of  corporate  misconduct. 
The  power  merely  to  make  an  order  which  can  only  be  en- 
forced by  an  executive  officer  after  a  trial  and  judgment  of 
a  court  of  original  jurisdiction  and  a  review  in  an  appellate 
court  according  to  the  prevailing  system  is  wholly  inefficient 
for  the  control  of  great  interests.  Courts  move  altogether  too 
slowly  and  deliberate  quite  too  long  to  be  efficient  in  meeting 
the  exigencies  of  business  in  this  manner.    They  are  however 


52  EVOLUTION  OF  GOVERNMENTS  A'ND  LAWS 

much  more  efficient  when  acting  through  receivers  appointed 
and  removed  by  them  at  pleasure.  The  receiver  takes 
full  charge  of  the  business  and  conducts  it  in  accordance  with 
the  orders  of  the  court  with  the  very  great  advantage  of  the 
protection  of  the  court  against  all  outside  interference.  Courts 
acting  through  receivers  in  fact  exercise  precisely  the  same 
combination  of  powers  deemed  unconstitutional  in  the  hands 
of  commissions.  If  large  combined  powers  are  conferred  on 
public  agencies  the  spirit  in  which  such  powers  will  be  exer- 
cised depends  largely  on  the  influences  governing  the  selection 
of  the  men  chosen  for  them.  It  has  often  happened  that  the 
public  agents  have  been  chosen  by  the  very  interests  they 
were  expected  to  regulate.  Under  every  form  of  government 
from  absolute  despotism  to  democracy  the  men  directly  inter- 
ested in  the  exercise  of  any  governmental  function  are  usually 
the  most  active  and  influential  in  securing  the  appointment  or 
election  of  agents  to  perform  such  functions.  The  richer  and 
more  powerful  the  combination  of  interests  to  be  controlled 
the  greater  the  influence  on  the  selection  of  the  agents  and 
on  their  action  afterward.  It  not  only  may  happen  but  has 
happened  many  times  that  special  interests  have  dictated  the 
policy  of  one  or  both  branches  of  Congress  and  of  state  legis- 
latures. The  law-making  power,  designed  to  promote  the 
welfare  of  all,  in  fact  sometimes  promotes  the  interests  of  the 
few  at  the  expense  of  the  many.  It  is  readily  apparent  that 
combined  powers  somewhat  despotic  in  character  are  poten- 
tially most  useful,  and  also  susceptible  of  the  greater  abuses. 
Where  such  powers  are  to  be  exercised  only  in  supervising 
and  correcting  abuses  in  one  or  a  few  designated  lines  of 
business,  and  where  the  public  agents  exercising  them  are  sub- 
ject to  removal  by  the  appointing  power  at  will  or  after  brief 
terms,  the  danger  of  abuse  of  them  is  not  great.  In  all  cases 
however  they  add  to  the  public  burdens  the  salaries  and  ex- 
penses of  their  offices. 

Where  the  government  undertakes  to  perform  new  business 
function  through  its  own  agents  the  element  of  profit  to  pri- 
vate investors  is  eliminated  and  with  it  all  private  manage- 
ment and  salaries  of  private  corporate  officers.     The  whole 


INTRODUCTION  53 

problem  is  simplified  to  the  performance  of  the  service  and 
the  collection  of  revenues  to  pay  the  expenses  of  it.  The 
Post  Office  affords  the  leading  illustration  of  a  continuing 
great  business  conducted  by  the  government,  and  the  construc- 
tion of  the  Panama  Canal  of  a  great  public  work  carried  on 
by  public  agents  at  public  expense.  These  functions  are  ex- 
ercised by  a  republic.  The  pyramids  of  Egypt,  the  walls  and 
canals  of  Babylon  and  the  Chinese  wall  are  instances  of  vast 
enterprises  carried  to  completion  at  public  expense  under  des- 
potisms. The  polity  of  ancient  Peru  exhibits  the  possibilities 
of  a  despotic  government  engaged  in  directing  the  useful  ac- 
tivities of  its  people  as  well  as  its  wars.  It  also  shows  how  a 
clearly  defined  general  purpose  of  promoting  the  general  wel- 
fare and  the  systematic  inculcation  of  the  principles  and 
knowledge  necessary  to  the  accomplishment  of  it,  may  over- 
come most  of  the  evil  tendencies  of  despotism  and  many  of 
those  of  popular  governments.  The  great  lack  in  Peru  was  of 
private  initiative  and  invention.  Freedom  to  effect  voluntary 
combinations  to  accomplish  lawful  purposes  is  the  foundation 
of  modern  business  progress.  The  governmental  and  business 
organization  of  the  United  States  and  of  the  leading  nations 
of  the  east  is  exceedingly  complex,  and  most  complex  in  the 
most  advanced  nations.  Does  improvement  lie  in  the  direc- 
tion of  simplification  or  of  further  complications?  The  moral 
law,  which  is  always  above  the  legislature  commands  the  elim- 
ination of  injustice  and  wrong  and  the  promotion  of  the  wel- 
fare of  all.  The  law-makers  must  choose  the  expedients  for 
the  accomplishment  of  these  ends. 

As  the  moral  responsibility  for  his  acts  rests  primarily  with 
the  individual,  so  the  moral  responsibility  for  the  acts  of  men 
who  combine  as  a  corporation  rests  primarily  with  them  and 
the  agents  they  appoint.  It  is  a  practical  question  as  to  how 
far  the  state  will  take  cognizance  of  the  misdeeds  and  short- 
comings of  private  citizens,  and  the  question  concerning  pri- 
vate corporations  is  similar  if  not  identical  in  principle.  It 
is  impossible  to  remedy  all  evils.  Experience  and  observation 
indicate  the  tasks  which  are  most  urgent  and  which  the  forces 
within  the  command  of  the  state  are  capable  of  accomplishing. 


11 


54  EVO'LUTION  OF  GOVERNMENTS  AND  LAWS 

A  consideration  of  prime  importance  is,  what  measure  of 
integrity  and  capacity  can  the  state  provide  for  the  given  task. 
Theories  of  organization  are  highly  important,  but  men  with 
the  capacity  and  disposition  to  carry  them  out  are  indispen- 
sable. The  evils  of  autocracy  arise  mainly  from  the  lack  of 
those  moral  restraints  on  the  conduct  of  officials  which  ac- 
countability to  the  people  for  their  acts  would  impose.  The 
leading  evils  connected  with  the  dealings  of  great  corporations 
are  mainly  due  to  ,  the  same  lack  of  accountability.  Their 
officers,  agents  and  employees  usually  find  their  conduct  ap- 
proved if  it  results  in  profit  to  the  owners,  without  regard  to 
its  effects  on  others.  In  many  cases  no  harm  comes  from  ad- 
herence to  this  principle,  because  the  corporation  itself  must 
struggle  for  existence  and  establish  its  moral  character,  but  in 
the  case  of  the  great  monopoly  the  evil  may  become  unendur- 
able. 

Specialization  implies  interdependence  as  its  inseparable 
concomitant.  Where  all  the  food  is  raised  by  one  part  of  the 
people,  all  the  clothing  made  by  another  part,  fuel  provided  by 
another,  and  transportation  by  still  another,  while  yet  others 
minister  to  special  wants  in  endless  detail,  it  is  folly  for  any- 
one to  regard  himself  as  independent  of  his  fellows.  There 
is  not  merely  the  moral  bond  of  common  brotherhood  but  also 
the  material  bond  of  common  interest.  Not  only  is  there 
separation  into  so  many  diverse  fines  of  industry  but  in  each 
of  them  there  are  many  distinct  parts  requiring  special  train- 
ing, which  only  those  so  trained  can  fill,  and  the  common  pur- 
pose of  all  can  only  be  accomplished  by  the  cooperation  of 
many,  neither  of  whom  could  well  perform  the  task  of  the 
other.  Each  wheel  in  the  great  human  machine  must  revolve 
in  its  place  and  each  cog  must  fit  in  its  slot.  In  such  a  state 
of  society  some  of  the  liberty  of  the  individual  must  give 
way  to  the  common  needs.  While  modern  combinations  re- 
sult in  subordination  and  in  some  instances  in  oppression  ap- 
proximating slavery,  and  pride,  arrogance,  wastefulness  and 
ostentation  exceeding  that  of  many  petty  despots,  neither  of 
these  evils  is  a  necessary  incident  of  concert  of  action  and  in- 
terdependence of  men.     They  are  mainly  due  to  a  disregard 


INTRODUCTION  55 

of  the  moral  law  by  those  who  rule  the  business.  The  law- 
makers are  confronted  with  the  task  of  eliminating  these  evils 
and  enforcing  the  observance  of  the  moral  law  in  the  appor- 
tionment of  the  burdens  and  benefits  of  common  undertakings. 
Civilization  is  measured  far  more  by  the  sum  total  of  com- 
bined effort  and  interdependence  than  by  the  achievements  of 
individuals  acting  separately.  As  it  advances  changes  in  the 
forms  of  association  and  in  the  activities  of  the  combinations 
must  take  place.  Militarism  and  all  its  wasteful  and  destruc- 
tive activities  is  being  and  must  continue  to  be  sloughed  off 
and  conserving  and  productive  ones  substituted.  Legislation 
with  reference  to  all  such  combinations  must  of  necessity 
change  with  changing  conditions.  Finality  in  the  form  and 
use  of  expedients  to  accomplish  legislative  or  business  pur- 
poses is  neither  attainable  nor  desirable.  It  is  idle  to  put 
forth  any  formula  of  words  as  a  sure  guide  for  future  con- 
ditions. Ethical  principles  have  permanence  and  should  be 
inviolable;  expedients  are  changeable  and  should  have  liberty. 
The  beautiful  ideal  of  a  state  of  ''liberty  equality  and  fra- 
ternity" is  not  to  be  abandoned  as  utterly  worthless  because 
of  human  imperfections  or  the  savagery  of  men  who  have 
uttered  the  words  without  comprehension  of  their  meaning, 
but  the  obstacles  they  interpose  to  its  approximation  are  to  be 
removed,  surmounted  or  avoided  by  men  to  whom  it  is  a 
guiding  light  through  mazes  of  difficulty.  New  and  yet  un- 
tried expedients  will  continue  in  the  future  as  they  have  been 
in  the  past  to  be  shorter  paths  to  richer  fields.  No  one  man 
will  suggest  all  of  them.  The  combined  judgment  of  many 
will  continue  to  be  a  safer  guide  in  most  cases  than  the 
separate  views  of  any  one. 

Judicial  Functions 

The  function  of  the  judiciary  is  to  apply  the  existing  law 
to  specific  cases  brought  to  the  attention  of  the  court  or 
judicial  officer  in  the  prescribed  manner.  In  every  well  or- 
dered state  the  rule  enforced  is  assumed  to  be  a  pre-existing 
one.  In  disposing  of  a  case  of  controverted  right  it  devolves 
on  the  court  to,  first,  determine  the  basis  of  fact  on  which 


S6  EVOLUTION  OF  GOVERNMENTS  AiND  LAWS 

the  controversy  arises;  second,  ascertain  what  principles  of 
substantive  law  apply  to  the  question  presented  by  the  facts, 
and  third,  render  such  judgment  as  the  law  applied  to  the 
facts  requires.  There  is  very  great  diversity  of  methods  of 
doing  this,  ranging  all  the  way  from  a  summary  hearing  of 
the  parties  before  a  single  judge,  followed  by  an  immediate 
judgment,  to  the  elaborate  system  of  procedure  with  its  long 
list  of  technical  rules  of  pleading  and  procedure  and  its  suc- 
cessive retrials  and  appeals.  Equal  diversity  has  obtained  in 
the  constitution  of  courts  and  in  the  treatment  of  parties  and 
witnesses.  Summary  methods  prevail  under  despotisms  with 
much  disregard  of  law,  and  the  extreme  of  prolixity  and  delay, 
amounting  to  substantial  incapacity  to  make  final  disposition 
of  a  complicated  case,  is  not  uncommon  in  a  great  republic. 

The  law-making  power  establishes  the  courts,  fixes  their 
respective  jurisdictions  and  provides  how  they  shall  be  con- 
stituted. In  a  simple  despotism  the  king  is  the  final  judge  of 
all  controversies  and  may  exercise  his  powers  in  person  or 
through  whomsoever  he  pleases  to  designate.  The  first  great 
stride  toward  liberty  is  the  establishment  of  a  court  that  is 
independent  of  the  king,  yet  bound  by  the  law.  A  full  re- 
view of  the  composition  of  the  diverse  courts  that  have  been 
established  in  the  various  countries  at  different  times  would 
be  out  of  place  here,  but  many  of  them  will  be  found  in  the 
succeeding  chapters.  In  English-speaking  countries  as  well 
as  many  on  the  European  continent  courts  of  first  instance, 
with  power  to  determine  all  questions  of  fact  and  of  law  and 
render  final  judgment  thereon,  are  made  up  of  one  or  more 
judges,  having  or  supposed  to  have  expert  knowledge  of  the 
law,  and  a  jury  of  laymen,  usually  twelve  in  number.  The 
parties  are  ordinarily  bound  to  accept  the  situation  and  go  to 
trial  before  the  judge  assigned  to  hold  the  court,  but  chal- 
lenges to  the  jurors  are  allowed  both  with  and  without  the 
assignment  of  cause  therefor.  In  criminal  cases  the  selection 
of  a  jury  often  causes  long  delay  and  great  expense,  with  a 
net  result  of  great  inconvenience  and  little,  if  any,  good.  The 
aim  is  to  eliminate  personal  bias  and  prejudice,  which  is  of 
course   eminently   desirable,    but   the    means   allowed    is    ab- 


INTRODUCTION  57 

surdly  disproportioned  to  the  evil  it  provides  against.  Sub- 
stantially all  cases  in  all  courts  are  conducted  by  lawyers  who 
are  employed  and  paid  by  the  respective  parties.  Each  of 
them  must  have  passed  the  prescribed  examination  into  his 
legal  learning  and  made  the  requisite  proof  of  moral  char- 
acter. In  the  trial  of  a  case  he  is  the  champion  of  his  client, 
and  his  standing  and  income  are  dependent  on  success  in  win- 
ning cases  for  those  who  employ  him.  Only  in  prosecutions 
for  public  offenses  and  cases  to  which  the  state  or  some  po- 
litical subdivision  of  it  is  a  party  is  an  attorney  present  to 
represent  the  public.  Every  step  taken  in  a  cause  is  under  the 
direction  of  a  lawyer  acting  either  as  an  advocate  or  judge, 
for  the  judges  are  all  lawyers.  While  the  parties  ordinarily 
have  the  right  to  conduct  their  own  cases,  they  seldom  do  so 
if  the  matter  is  of  much  importance.  In  general  all  questions 
of  fact  are  finally  determined  in  the  court  of  first  instance 
having  general  jurisdiction,  or  some  inferior  court.  The  ap- 
pellate courts  are  generally  made  up  of  several  judges,  and 
rarely  have  the  attendance  of  a  jury.  In  these  courts  ques- 
tions of  law  only  are  ordinarily  determined.  Litigants  are 
by  no  means  sure  of  a  final  disposition  of  their  case  after  the 
decision  of  the  court  of  first  instance  has  been  reviewed  by 
the  highest  tribunal  to  which  it  can  be  carried,  for  in  very 
many  of  them  a  new  trial  in  the  court  of  first  instance  is  or- 
dered, and  the  case  is  again  at  the  starting  point  with  nothing 
settled  but  some  proposition  of  law  or  procedure.  The  whole 
system  of  courts  is  required  for  the  discharge  of  the  full 
judicial  functions  of  the  state,  but  the  courts  of  first  instance 
make  final  disposition  of  a  great  majority  of  all  the  causes. 
The  courts  of  last  resort  are  only  called  on  to  decide  certain 
exceptional  classes  of  cases  of  which  they  are  given  original 
jurisdiction  and  such  as  are  appealed  from  the  lower  courts. 
In  some  cases  successive  appeals  from  court  to  court  are  al- 
lowed, so  that  under  certain  conditions  a  case  may  be  heard 
successively  in  four  or  five  different  grades  of  courts.  It 
may  well  be  asked  which  is  the  better,  an  arbitrary  final  de- 
cision by  one  judge  finally  settling  the  whole  controversy  or 
such  a  round  of  inconclusive  trials  and  reviews,  with  the  pos- 


58  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

sibility  that  the  highest  court  will  send  it  back  to  travel  the 
whole  road  over  again?  In  building  the  latter  system  has 
not  the  perspective  been  allowed  to  obscure  the  main  purpose 
of  the  judicial  function  and  the  mere  incident  been  given  more 
weight  and  value  than  substantial  justice? 

It  is  a  fundamental  principle  of  jurisprudence  that  courts 
do  not  take  notice  of  any  controversy  till  it  is  presented  in  the 
prescribed  manner  by  a  complaining  party.  In  all  but  a  few 
exceptional  cases  no  action  can  be  taken  until  notice  has  been 
given  to  the  adverse  party  in  the  manner  provided  by  law. 
It  is  a  fundamental  principle  of  justice  as  well  as  of  law  that 
all  parties  interested  in  any  matter  to  be  determined  shall  have 
fair  notice  of  the  claim  made  against  them,  of  the  time  and 
place  of  every  hearing  in  the  case,  reasonable  time  and  op- 
portunity to  attend,  procure  and  produce  evidence  and  present 
their  versions  of  the  facts,  the  questions  involved  '  and  the 
law  applicable  thereto.  These  requirements  furnish  substan- 
tially all  the  basis  there  is  for  codes  and  rules  of  procedure. 
The  primitive  method  is  for  the  complaining  party  to  summon 
his  adversary  to  go  with  him  before  the  judge,  to  there  state 
his  grievance  and  ask  for  redress,  and  for  the  defendant  to 
then  make  his  answer,  and  the  judge  to  decide  the  matter 
after  hearing  the  statements  of  witnesses  or  not,  as  appears 
necessary.  There  are  no  written  pleadings,  no  rules  of  pro- 
cedure, no  lawyers,  little  if  any  delay  of  the  hearing  and  an 
immediate  consideration  and  decision  of  the  controversy,  so 
that  all  concerned  may  act  accordingly  and  go  on  with  their 
business.  This  in  substance  was  the  procedure  in  the  early 
days  of  Rome  where  the  case  was  tried  in  the  morning  and 
decision  required  before  sundown.  It  was  adapted  to  a  simple 
state  of  society.  Much  of  the  formalism  and  prolixity  of 
modern  court  procedure  is  due  to  the  complex  nature  of  mod- 
ern business  and  modern  theories  and  rules  of  rights  to  prop- 
erty. In  a  case  affecting  many  widely  scattered  parties  it  is 
not  possible  to  take  all  of  them  by  the  arm  and  lead  them 
before  the  judge,  nor  would  it  be  practicable  to  make  an 
oral  statement  covering  all  the  claims  made  against  each  of 
them.     It  is  necessary  to  write  it  down,  so  that  it  will  be 


INTRODUCTION  "  59 

definite  and  all  may  know  just  what  the  complaint  is.  The 
answer  of  a  defendant  may  be  equally  full  of  details,  and  it  is 
therefore  equally  necessary  that  it  be  written.  This  shows  the 
need  of  written  statements  of  claims,  but  it  does  not  show  any 
necessity  for  a  long  jargon  of  set  phrases  to  express  an  idea 
which  might  be  more  clearly  understood  if  written  in  a  few 
common  words,  nor  for  senseless  repetitions  on  a  theory  that 
each  of  a  number  of  causes  of  action  must  be  fully,  technically 
and  separately  set  forth.  The  technical  accuracy  of  statement 
so  strenuously  demanded  by  most  American  lawyers  is  pal- 
pably absurd.  All  that  serves  any  real  purpose  in  the  state- 
ment is  the  language  that  notifies  the  adverse  party  of  the 
claim  made.  All  elaboration  beyond  this  is  surplusage,  and 
all  mere  jargon,  such  as  is  used  to  embelHsh  bills  in  equity,  is 
worse  than  useless.  In  England,  where  this  extreme  techni- 
cality in  pleadings  originated,  a  sensible  system  now  prevails, 
and  the  rules  governing  equity  cases  in  the  federal  courts  of 
the  United  States  have  just  been  greatly  simplified  and  im- 
proved but  in  many  of  the  states  the  ancient  forms  are  still 
observed. 

When  a  case  is  before  a  court  with  all  parties  duly  notified 
of  its  pendency  and  fair  statements  made  of  the  claims  and 
defenses  of  all  parties  it  would  seem  natural  that  the  regula- 
tion of  the  details  of  the  investigation  into  the  facts  and  the 
application  of  the  law  should  be  left  to  the  court  and  adapted 
to  the  situation  presented.  Instead  of  doing  so  in  America 
there  are  elaborate  codes  of  procedure  restricting  the  joinder 
of  causes  of  action  and  of  parties,  the  defenses  and  counter- 
claims of  the  defendants  and  the  manner  of  conducting  the 
investigation.  Numerous  positive  rules  are  declared  govern- 
ing the  successive  steps  in  the  progress  of  the  case  and  its 
incidents  and  ancillary  remedies.  These  rules  are  treated  by 
the  courts  as  of  the  same  binding  force  as  statutes  of  sub- 
stantive law,  not  only  in  the  trial  courts  but  in  the  reviewing 
courts  as  well.  This  often  results  in  the  decision  of  cases  on 
mere  lawyers'  questions,  having  no  connection  with  the  real 
controversy  between  the  parties,  but  which  have  been  injected 
into  the  case  by  the  lawyers  in  their  eflForts  to  gain  advantage 


6o  EVOLUTION  OF  GOVfERNMENTS  A'ND  LAWS 

from  the  rules  of  procedure.  The  theory  on  which  these  rules 
are  established  is  that  they  tend  to  a  proper  trial  and  a  cor- 
rect decision.  The  fallacy  lies  in  the  assumption  that  the 
rules  of  procedure  are  so  plain  and  easily  followed  that  they 
will  be  helpful  in  the  investigation.  A  few  simple  rules  regu- 
lating the  essential  steps  in  the  progress  of  the  case  are  so, 
but  a  multiplicity  of  complex  requirements  is  a  snare  which 
it  is  difficult  to  avoid.  There  is  the  same  likelihood  of  differ- 
ent interpretations  of  rules  of  procedure  as  of  rules  of  sub- 
stantive law,  and  every  unnecessary  positive  requirement  is 
sure  to  result  in  needless  annoyance,  delay,  expense  and  in- 
justice. It  is  not  possible  to  compel  right  decisions  by  mere 
rules  of  procedure,  but  it  is  possible  to  compel  wrong  ones, 
and  this  is  in  fact  done  in  an  appreciable  part  of  the  cases 
tried  in  the  courts  of  the  United  States. 

A  case  being  at  issue  on  a  disputed  question  of  fact  how 
shall  the  truth  be  ascertained?  In  cases  tried  by  a  jury  the 
rule  is  that  the  jury  answers  to  the  facts  and  the  court  to  the 
law,  and  in  other  cases  the  facts  are  determined  either  by  the 
judge  or  a  referee  appointed  by  him.  Methods  of  inquiry 
have  been  as  varied  as  the  human  mind  can  conceive.  Some 
are  based  on  a  superstitious  belief  in  divine  interposition  to 
protect  the  innocent  and  punish  the  guilty.  Such  were  the 
ancient  English  trials  by  ordeal.  There  was  the  fire  ordeal 
performed  by  a  person  accused  of  crime  by  taking  in  his  hand 
a  piece  of  red  hot  iron,  or  by  walking  barefoot  and  blindfold 
over  nine  red-hot  plowshares  laid  lengthwise  at  equal  dis- 
tances. If  he  escaped  unhurt  he  was  adjudged  innocent;  if 
hurt  guilty.  The  water  ordeal  was  performed  by  plunging 
the  bare  arm  up  to  the  elbow  in  boiling  water,  or  by  throwing 
the  accused  into  the  water.  If  he  was  burned  in  the  hot 
water  or  floated  on  the  water  he  was  guilty.  There  was  also 
the  ordeal  of  the  corsned,  trial  by  wager  of  battle  and  by  the 
defendant  waging  his  law,  which  he  did  by  swearing  to  his 
defense  and  having  his  neighbors  swear  that  they  believed  he 
told  the  truth.  Similar  superstitious  tests  of  truth  have  been 
resorted  to  by  many  primitive  people.  In  all  well  organized 
states  both  ancient  and  modern  the  usual  method  of  ascer- 


INTRODUCTION  6i 

taining  the  facts  has  been  by  taking  the  statements  of  wit- 
nesses. There  is  very  great  diversity,  however,  in  the 
methods  of  taking  the  testimony,  varying  all  the  way  from 
extracting  it  by  torture  on  the  rack  under  the  holy  inquisition, 
or  with  the  bamboo  in  China,  to  the  mere  statement  of  the 
witness,  uninfluenced  by  any  other  consideration  than  regard 
for  the  truth.  In  most  countries  a  religious  oath  or  admoni- 
tion of  the  penalties  of  perjury  is  imposed  before  taking  the 
testimony.  There  is  no  country  in  which  all  the  people  have 
yet  attained  sufficient  moral  strength  to  entirely  eliminate  the 
danger  of  intentional  falsehood.  Moral  delinquency  of  this 
kind  varies  all  the  way  from  the  deliberate  misstatement  of 
a  matter  of  fact  to  the  mere  failure  to  mention  a  minor  cir- 
cumstance having  some  bearing  on  the  issue  as  to  which  no 
pointed  question  compels  a  definite  answer.  Nevertheless 
an  overwhelming  majority  of  all  the  people  of  European 
stock  are  truth  tellers  by  nature  and  habit,  and  in  all  the 
ordinary  affairs  of  life  in  or  out  of  court  and  with  or  without 
an  oath  their  statements  can  be  relied  on  whenever  they  are 
called  on  for  information.  A  far  more  common  and  serious 
obstacle  in  the  way  of  determining  the  facts  is  the  unreliabil- 
ity of  the  testimony  of  witnesses  due  to  inaccuracy  of  observa- 
tion and  expression  and  defects  of  memory.  These  cause 
witnesses  to  the  same  occurrence  to  give  very  different  ac- 
counts of  it.  Every  infirmity  in  the  organs  of  sense,  in  mental 
processes  and  in  knowledge  of  language  and  power  of  ex- 
pression of  the  witness  is  liable  to  leave  its  mark  on  his  state- 
ments. Passing  from  the  infirmities  of  witnesses  to  those  of 
jurors  and  judges  we  find  that  the  testimony  does  not  pro- 
duce the  same  impression  on  all  of  them,  and  that  different 
ones  reason  to  different  conclusions  from  the  same  premises. 
Where  witnesses  contradict  each  other,  one  juror  will  believe 
one  and  another  the  other.  The  statement  of  one  may  be 
absolutely  true,  yet  made  with  hesitation,  as  if  in  doubt, 
while  the  contradicting  statement  of  the  opposing  witness  may 
be  given  promptly  and  positively.  By  what  token  can  the 
juror  recognize  the  truth  and  detect  the  falsehood? 

These  multifarious  difficulties  in  arriving  at  the  truth  in 


62  EVO'LUTION  OF  GOVERNMENTS  AND  LAWS 

judicial  investigations  have  induced  the  law-makers  and  courts 
to  adopt  an  elaborate  system  of  rules  of  evidence.  Some  of 
these  absolutely  exclude  witnesses  bearing  certain  relations  to 
the  case  or  to  the  parties  to  it  from  testifying  at  all,  or  limit 
their  testimony  to  certain  exceptional  matters.  Others  re- 
quire proof  of  certain  facts  to  be  made  by  a  prescribed 
number  of  witnesses,  or  by  a  certain  kind  of  evidence,  as  a 
written  document  executed  in  a  prescribed  manner,  a  record 
made  in  a  particular  office  or  a  copy  of  it  made  by  a  desig- 
nated officer  and  certified  to  with  the  required  formalities. 
Generally  the  title  to  land  must  be  established  by  deeds  in  due 
form,  but  in  many  cases  this  is  impossible  and  many  excep- 
tions and  modifications  of  the  general  rule  are  found  neces- 
sary to  prevent  the  most  palpable  injustice.  Various  contracts 
are  required  to  be  in  writing  in  order  to  be  enforced  through 
the  courts,  on  the  theory  that  frauds  will  be  perpetrated  in 
the  absence  of  the  requirement,  yet  to  prevent  frauds  result- 
ing from  the  requirement  numerous  exceptions  are  made.  In 
England  and  the  United  States  until  very  recent  times  per- 
sons charged  with  crimes  were  allowed  to  confess  guilt  and 
receive  their  punishment  without  other  proof,  but  were  not 
permitted  to  testify  at  the  trial.  Torture  to  extract  confes- 
sions of  guilt  has  been  and  still  is  a  favorite  method  of  get- 
ting evidence  in  many  places.  What  is  termed  ''sweating"  is 
a  mild  form  of  torture  still  resorted  to  without  authority  of 
law  in  many  places  by  over-zealous  police  officers.  The  in- 
herent difficulties  in  obtaining  proof  of  crimes  committed  in 
secret  tempt  the  officers  to  force  the  truth  from  those  who 
know  the  facts.  The  torture  is  inflicted  before  trial  on  the 
assumption  that  the  prisoner  is  guilty  but  will  not  admit  it. 
The  law  now  regards  a  person  charged  with  crime  as  inno- 
cent until  he  confesses  or  is  convicted,  and  in  many  states  he 
is  allowed  to  testify  in  his  own  behalf.  As  civilization  and 
moral  standards  advance  more  reliance  is  placed  on  the  truth- 
fulness and  honesty  of  parties  and  witnesses  and  the  arbi- 
trary rules,  based  on  distrust  of  them ;  are  abolished.  Parties 
were  formerly  excluded  from  testifying  on  the  theory  that 
their  interest  in  the  case  would  cause  them  to  lie.     Wives 


INTRODUCTION  63 

were  prohibited  from  testifying  for  their  husbands.  These 
restrictions  are  still  retained  in  some  states,  but  there  is  a 
marked  tendency  to  do  away  with  them  and  assume  that  even 
those  most  interested  in  the  result  of  the  trial  will  tell  the 
truth  in  the  great  majority  of  cases.  There  has  also  been  a 
corresponding  relaxation  of  the  rules  relating  to  the  recep- 
tion of  private  account  books  and  other  private  writings  as 
evidence.  While  there  has  been  and  still  is  ample  basis  for 
distrust  in  particular  cases,  it  may  well  be  doubted  whether 
arbitrary  rules  excluding  witnesses  from  testifying  in  any 
case  tend  in  the  right  direction.  The  credibility  of  witnesses 
may  well  be  affected  by  the  considerations  which  have  caused 
their  exclusion,  but  it  is  grossly  unjust  to  assume  that  all 
people  will  resort  to  falsehood  to  further  their  own  interests 
or  that  a  majority  of  them  will  do  so.  The  natural  obstacles 
in  the  way  of  the  judicial  search  for  truth  cannot  be  removed 
by  closing  the  doors  to  any  place  where  it  may  be  found. 
Arbitrary  rules  may  prohibit  its  discovery,  but  cannot  pro- 
mote it. 

The  controversy  may  be  merely  as  to  the  facts,  or  as  to 
the  law,  or  as  to  both  facts  and  law.  Where  the  facts  only 
are  controverted  and  the  parties  are  agreed  as  to  the  law 
applicable  to  them,  the  verdict  of  the  jury  or  findings  of  fact 
by  the  court  are  followed  by  such  judgment  as  they  warrant. 
Where  the  parties  disagree  as  to  what  the  rules  of  substantive 
law  are,  or  as  to  which  pi  several  acknowledged  rules  ap- 
plies to  the  facts  as  found  or  admitted,  it  is  the  province  of 
the  court  to  declare  what  the  law  is  and  which  of  its  rules 
apply  to  the  controversy.  Where  shall  the  judge  look  for  a 
clear  statement  of  the  law?  In  China  to  the  Penal  Code,  in 
India  to  the  Code  of  Manu,  in  all  Mohammedan  countries  to 
the  Koran,  in  continental  Europe  to  the  compilations  of  Ro- 
man law  made  under  Justinian  and  the  modifications  of  it 
made  by  the  law-making  power  of  the  particular  nation,  in 
England  to  the  acts  of  Parliament  and  the  reported  decisions 
of  the  courts  construing  them  or  declaring  the  rules  of  the 
common  law,  and  in  the  United  States  to  the  federal  and 
state  constitutions,  to  the  acts  of  Congress  and  of  the  state 


64  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

legislatures,  and  to  the  decisions  of  the  courts  construing 
them  and  declaring  the  common  law.  There  is  not  now  and 
never  has  been  in  any  country  a  code  of  written  laws  so 
plain  in  its  terms  as  to  be  self-explanatory,  or  which  provided 
rules  directly  applicable  to  every  question  presented  to  the 
courts  for  decision.  The  Koran,  which  perhaps  has  higher 
authority  among  Mohammedans  than  the  code  of  any  other 
people  has  with  them,  contains  so  few  and  meager  rules  that 
the  judicial  officers  are  forced  to  supplement  them  with  others 
which  they  deem  in  accord  with  the  spirit  of  the  Koran.  The 
wisdom  of  the  prophet  was  not  adequate  to  the  future  de- 
velopments of  Mohammedan  civilization.  So  it  is  with  every 
code  of  laws,  no  matter  how  wise  the  author  of  it  may  be 
or  how  great  his  authority.  Advancing  and  receding  civiliza- 
tion each  present  new  forms  of  human  relation,  activity  and 
combination,  new  fields  of  enterprise  and  new  forms  of  prop- 
erty. Old  customs  give  way  to  new  ones,  and  old  standards 
of  morality  are  superseded  by  better  ones.  Progress  means 
change  in  the  forms  and  purposes  of  human  activity,  and  the 
law,  which  is  merely  the  expression  of  legislative  will  or  es- 
tablished custom,  always  lags  behind  the  advanced  thought 
of  any  age. 

In  the  United  States  the  courts  have  to  deal  with  many 
kinds  of  law  emanating  from  different  sources,  and  to 
determine  which  has  controlling  force  in  the  case  under 
consideration.  The  constitution  of  the  United  States  is  the 
supreme  law  to  all  courts,  but  its  field  is  relatively  very  small 
and  it  affords  rules  to  solve  only  a  very  few  of  the  great 
number  of  questions  to  be  answered.  Acts  of  Congress 
passed  under  its  authority  rank  next.  The  constitution  of  the 
the  state  in  which  the  court  sits  is  next  in  authority.  Most 
of  the  state  constitutions  cover  more  ground  and  are  of  more 
frequent  application  than  the  Federal  Constitution.  Acts  of 
the  state  legislature  which  do  not  conflict  with  either  state  or 
national  constitution  or  a  valid  act  of  Congress  come  next  and 
cover  a  much  wider  field.  While  the  whole  volume  of  writ- 
ten law  contained  in  constitutions  and  statutes  is  much  smaller 
than   that   of   the   unwritten   common   law,    it   is   within   the 


INTRODUCTION  65 

power  of  the  state  legislatures  to  cover  as  much  or  as  little 
of  the  field  by  statutes  as  they  see  fit.  The  task  of  ascertain- 
ing what  the  written  law  is  is  often  one  of  great  difiiculty,  ow- 
ing to  different  enactments  made  at  different  times,  under 
different  circumstances  and  for  different  purposes,  which 
overlap  and  conflict  as  to  details.  In  addition  to  the  consti- 
tutional and  statutory  law  there  are  treaties  between  nations 
having  the  effect  of  law,  and  the  unwritten  principles  of  in- 
ternational and  admiralty  law.  Below  all  the  foregoing  there 
are  municipal  ordinances  operative  as  local  laws,  and  the  by- 
laws of  corporations  and  associations  binding  on  their  mem- 
bers. While  the  common  law  is  spoken  of  as  the  unwritten 
law,  it  is  looked  for  in  printed  books  of  reports  of  decisions  of 
the  courts  in  which  its  doctrines  are  discussed  in  endless  de- 
tail and  numberless  cases.  These  cases  are  of  various  grades 
of  authority  and  persuasive  reasoning.  Decisions  of  the  Su- 
preme Court  of  the  United  States  are  binding  on  all  courts  in 
their  construction  of  the  Constitution  of  the  United  States 
and  acts  of  Congress  passed  thereunder  and  as  to  all  matters 
within  its  special  province,  but  its  answer  to  any  question  as 
to  what  the  rules  of  the  common  law  are  have  merely  the 
persuasive  force  of  the  opinion  of  the  highest  court  in  the 
land.  Similarly  the  decisions  .of  the  highest  court  of  a  state 
as  to  the  law  of  the  state,  written  or  unwritten,  is  binding  on 
all  inferior  tribunals  of  the  state.  The  leading  purpose  of 
the  people  in  providing  reviewing  courts  is  to  procure  and 
preserve  uniformity  of  construction  of  statutes  and  constitu- 
tions, and  uniform  declarations  of  the  rules  of  the  unwritten 
law.  It  sometimes  happens  that  the  Supreme  Court  changes 
its  views  as  to  the  rules  of  law  and  either  overrules  or  ignores 
its  own  prior  decision.  This  of  course  introduces  confusion 
instead  of  preserving  uniformity.  When  a  prior  decision  is 
pointedly  declared  to  have  been  a  misstatement  of  the  law  and 
distinctly  overruled  lawyers  and  inferior  courts  may  accept 
the  last  decision  with  a  fair  degree  of  assurance  that  the  rule 
last  announced  will  be  adhered  to  in  the  future,  but  when  a 
prior  decision  is  merely  ignored  without  comment  confusion 
and  uncertainty  inevitably  follow,  for  nobody  can  tell  which 


(^  EVOLUTION  OF  GOVERNMEx\TS  AND  LAWS 

precedent  will  be  followed  in  the  next  case.  Questions  some- 
times arise  which  have  not  been  decided  by  the  court  of  high- 
est authority  over  the  trial  court.  Resort  is  then  had  to  the 
decisions  of  courts  of  other  states  for  guidance.  It  sometimes 
happens  that  the  court  of  one  state  resolves  the  doubt  one 
way  and  another  the  other.  Sometimes  the  courts  of  different 
states  are  about  equally  divided  in  number  on  each  side,  and 
sometimes  the  less  number  appear  to  be  the  best  authorities. 
With  all  this  multiplicity  of  sources  of  the  law  is  it  strange 
that  courts  of  first  instance,  which  have  to  deal  with  both 
the  facts  and  the  law  are  sometimes  reversed  by  the  reviewing 
courts?  If  mere  complexity  of  the  laws  is  an  index  of  civili- 
zation, the  United  States  is  a  highly  civilized  country.  The 
publication  of  reports  of  the  decisions  of  the  reviewing  courts 
goes  on  at  the  rate  of  something  like  two  hundred  volumes 
a  year,  and  the  number  steadily  increases.  That  there  are  so 
many  is  of  itself  some  proof  that  the  law  is  in  an  unsettled 
state.  The  truth  is  that  the  modern  tendency  to  refinement 
and  nice  distinction  has  so  obscured  many  wholesome  general 
principles  that  the  rule  itself  can  no  longer  be  applied  with 
any  fair  degree  of  certainty  or  uniformity  and  is  therefore 
thrown  aside  and  one  or  another  exception  followed.  It  is 
manifest  that  the  present  system  will  ultimately  fall  of  its 
own  weight.  Much  of  the  public  dissatisfaction  with  the 
methods  of  the  courts  and  the  delays  and  expense  of  litigation 
is  chargeable,  to  the  impossibility  of  a  full  consideration  of  the 
law  in  the  trial  courts.  The  trial  judge  can  make  only  a 
cursory  examination  of  authorities  bearing  on  a  nicely  bal- 
anced question,  while  the  reviewing  court  proceeds  with  great 
deliberation,  and  feels  called  on  to  state  and  apply  the  law 
with  the  utmost  accuracy.  Notwithstanding  the  vast  accumu- 
lation of  recorded  precedents,  new  inventions,  new  combina- 
tions and  new  forms  of  contracts  are  presenting  new  questions 
to  the  courts.  Though  broad  general  principles  may  apply, 
the  habit  of  seeking  for  identical  precedents  has  become  so 
fixed  that  courts  hesitate  to  apply  broad  principles  without  the 
support  of  precedents  of  like  cases.  This  extreme  nicety  leads 
rather  to  confusion  than  to  certainty.     Ordinarily  the  gen- 


INTRODUCTION  67 

eral  principles  are  better  guides  and  more  easily  followed  than 
the  similar  precedents.  In  theory  there  is  and  always  has 
been  a  rule  of  law  applicable  to  and  decisive  of  every  contro- 
versy, else  cases  might  arise  which  could  not  be  determined. 
The  judge  must  find  a  rule,  whether  it  has  ever  been  an- 
nounced or  not.     This  is  true  in  all  countries  and  at  all  times. 

If  every  disagreement  were  submitted  to  the  courts  under 
the  existing  elaborate  system  they  would  be  overwhelmed  with 
such  a  mass  of  litigation  that  it  would  be  utterly  impossible 
to  dispose  of  it.  As  it  is  the  judicial  mills  are  so  full  in  many 
places  that  long  delays  amounting  to  a  substantial  denial  of 
justice  are  inevitable.  Fortunately  the  people  themselves  ad- 
just most  of  their  differences  without  resort  to  the  courts. 
Business  is  so  conducted  that  but  a  very  small  part  of  the 
numberless  transactions  of  commerce  and  employment  give 
rise  to  any  dispute.  The  parties  to  them  frequently  agree  on 
terms  and  adjustments  of  their  affairs  quite  different  from 
what  the  law  would  impose.  The  moral  law,  views  of  justice 
and  fairness  often  induce  one  to  give  more  than  the  law  re- 
quires or  the  other  party  asks,  or  to  accept  less  than  such 
amount.  As  moral  standards  advance  and  altruistic  impulses 
increase  necessity  for  the  exercise  of  judicial  functions  di- 
minishes. 

While  the  courts  could  do  much  to  overcome  the  difficulties 
above  outlined  by  improvement  of  their  own  methods,  com- 
prehensive reforms  can  only  be  effected  by  the  legislative 
power.  Many  branches  of  the  law  admit  of  world  wide  uni- 
formity, while  others  are  of  necessity  local.  The  law  of  the 
high  seas,  which  no  nation  owns,  must  be  common  to  the  navi- 
gators of  all  nations.  The  rules  of  commerce  are  susceptible 
of  substantial  uniformity,  and  the  law  of  personal  relations, 
though  so  long  and  grossly  unjust,  ought  to  be  uniforml}^ 
just  throughout  the  world.  Slavery  has  already  met  the  con- 
demnation of  all  civilized  people,  and  all  other  forms  of  op- 
pressive personal  relations  must  give  way  to  moral  progress. 
Titles  to  land  and  rights  of  occupancy  of  it  must  of  necessity 
be  dependent  in  some  measure  on  local  conditions  of  soil, 
climate,  market  and  pressure  of  population.     The  purposes, 


68  EVOLUTION  OF  GOViBRNMENTS  A)ND  LAWS 

forms  and  extent  of  industrial  and  commercial  combinations 
will  always  depend  in  some  degree  on  such  conditions  and 
also  on  the  habits,  capacity  and  character  of  the  population. 
There  are  already  beginnings  of  a  common  law  of  the  world, 
the  principles  of  which  are  recognized  by  all  civilized  nations. 
With  an  advancing  recognition  of  moral  standards  it  becomes 
apparent  that  the  relations  of  nations  however  distant  and  dis- 
similar should  be  regulated  by  law,  and  also  that  the  law 
should  be  just.  World  wide  reforms  having  the  effect  of 
amendments  of  the  law  of  nations  are  being  made  through  the 
instrumentality  of  conferences  at  the  Hague  and  elsewhere  of 
representatives  of  the  nations,  by  treaties  between  different 
powers,  and  yet  more  by  the  dissemination  of  the  principles 
of  morality.  Legislative  bodies  in  all  parts  of  the  earth  now 
take  some  notice  of  the  laws  of  distant  nations  and  shape 
their  own  acts  with  some  reference  to  the  light  they  get  from 
abroad.  The  most  marked  evil  tendency  resulting  from  the 
imitation  of  foreign  examples  is  in  the  drift  of  the  peaceful 
nations  of  the  east  toward  the  vicious  militarism  of  the  west, 
but  it  seems  reasonably  certain  that  this  evil  will  correct  itself 
in  the  near  future,  and  that  the  universal  law  will  be  a  steady 
approximation  toward  the  moral  law. 

The  evil  of  an  unwieldy  body  of  precedents,  similar  to  that 
with  which  we  are  afflicted  in  the  United  States,  existed  in  the 
Roman  Empire  in  the  time  of  Justinian,  and  was  then  met  by 
a  general  codification.  This  remedy  could  be  applied  with 
comparative  ease  under  an  autocrat,  but  with  legislative 
powers  apportioned  between  Congress  and  forty-eight  state 
legislatures  the  practical  difficulties  appear  almost  insurmount- 
able. A  start  toward  uniformity  throughout  the  states  has 
been  made  through  the  influence  of  the  American  Bar  As- 
sociation and  the  Commissioners  on  Uniform  State  Laws,  but 
anything  approximating  a  general  codification  of  the  whole 
body  of  the  law  throughout  the  Union  is  not  yet  even  fore- 
shadowed. Manifestly  the  widest  practicable  uniformity  is 
eminently  desirable.  The  obstacles  to  intercourse  between 
residents  of  different  parts  of  the  country  interposed  by  time 
and  distance  have  been  largely  eliminated  by  modern  inven- 


INTRODUCTION  69 

tions.  The  obstacles  interposed  by  diverse  laws  can  be  elimi- 
nated by  uniformity.  The  process  by  which  this  may  be 
promoted  is  foreshadowed  by  the  start  already  made  by  the 
Commissioners,  taking  one  topic  at  a  time  and  devoting  ample 
time  to  it.  More  rapid  progress  might  be  made  if  the  Com- 
missioners had  more  general  recognition  throughout  the  states 
and  sufficient  financial  support  to  enable  them  to  devote  the 
necessary  time  to  the  work.  In  a  period  of  invention  and 
rapid  changes  of  social,  industrial  and  commercial  combina- 
tions, a  rigid  code,  purporting  to  cover  the  whole  field  of  the 
law  for  the  future,  is  neither  practicable  nor  desirable,  but  it 
is  possible  and  eminently  desirable  to  codify  those  branches 
that  admit  of  complete  uniformity,  like  commercial  law,  and 
that  wherever  moral  principles  are  involved  in  the  law  on  any 
subject  the  closest  possible  approximation  to  the  just  rule 
should  be  adopted  and  given  the  most  ample  application. 

The  states  acting  separately  may  make  substantial  progress 
in  simplifying  the  laws  of  local  application  by  codification  by 
topic  of  these  subjects.  Of  course  all  uniform  state  laws, 
however  formulated,  would  only  become  effective  on  their 
adoption  by  the  state  legislature  and  would  appear  in  the 
statute  books  merely  as  laws  of  the  state.  The  value  of  a 
codification  would  be  dependent  in  some  measure  on  the  de- 
gree of  permanence  attaching  to  the  rules  contained  in  it,  but 
it  has  the  advantage  of  classification  and  orderly  arrange- 
ment, and  tends  to  clearness  in  case  of  subsequent  amend- 
ments. These  are  matters  of  great  importance  in  simplifying 
the  labors  of  the  judge.  When  the  rules  of  substantive  law 
are  scattered  through  numberless  volumes  under  all  sorts  of 
classification  and  headings,  he  can  never  know  that  his  in- 
vestigation has  quite  covered  the  whole  subject.  With  a  com- 
plete codification  of  any  topic  he  might  feel  a  fair  degree  of 
assurance  that  he  had  all  the  law  he  required  before  him. 
After  the  best  possible  codification  of  existing  law  has  been 
made  there  will  still  remain  the  experimental  field  of  new 
subjects  and  radical  changes  of  old  ones,  of  new  public  enter- 
prises and  new  private  schemes  requiring  regulation. 

All  questions  of  fact  and  of  law  which  are  determined  by 


70  EVOLUTION  OF  GOVERNMENTS  AiND  LAWS 

the  judges  are  resolved  by  the  opinion  of  the  majority  of 
them,  but  in  most  states  the  determination  of  a  question  of 
fact  by  a  jury  of  twelve  requires  the  concurrence  of  all.  This 
is  most  illogical  and  productive  of  great  expense,  inconven- 
ience and  delay  in  a  considerable  part  of  the  difficult  cases. 
In  criminal  cases  subjecting  a  defendant  to  vindictive  punish- 
ment it  is  merciful  to  require  unanimity,  but  in  civil  cases  the 
concurrence  of  three-fourths  is  ample,  and  it  w^ould  be  equally 
safe  in  criminal  cases  prosecuted  v^ith  a  view  to  the  welfare  of 
the  defendant  as  well  as  the  public. 

In  many  states  new  trials  of  all  the  issues  are  granted  for 
reasons  affecting  only  one  or  more  of  them.  Where  this  is 
done  the  first  trial  goes  for  nothing,  when  logically  it  should 
settle  all  issues  as  to  which  there  has  been  a  fair  and  full  trial 
and  clear  finding. 

Successive  appeals  ought  not  to  be  allowed  in  any  case. 
The  evil  consequences  of  them  far  outweigh  the  general 
benefit. 

Questions  as  to  the  constitutionality  of  statutes  ought  to  be 
settled  in  advance  of  the  private  litigation  under  them,  and  in 
a  proceeding  in  which  the  public  is  represented.  It  causes 
contempt  of  the  legislative  authority  to  require  private  citi- 
zens to  determine  for  themselves  when  an  act  of  Congress  or 
a  state  legislature  is  valid,  and,  having  acted  in  the  belief  that 
it  is  valid,  to  be  called  on  to  defend  it  through  a  series  of 
courts  and  suffer  loss  at  the  end  because  the  court  of  last 
resort  holds  it  invalid. 

Executive  Functions 

In  the  evolution  of  government  from  chaotic  liberty  the 
first  function  to  be  developed  is  the  executive.  It  is  usually  ex- 
ercised in  leading  war  parties,  hunting  or  fishing  expeditions, 
and  in  such  manner  as  accords  with  the  character,  customs  and 
purposes  of  the  tribe.  Combined  with  it  are  such  crude  be- 
ginnings of  legislative  and  judicial  functions  as  the  situation 
requires,  all  assumed  ordinarily  by  a  single  leader.  The  next 
function  taking  separate  form  is  the  legislative,  usually  ex- 
ercised by  a  general  council  of  the  tribe  or  the  elders  or  heads 


IXTROOUCTIOX  71 

of  families  in  it.  Representative  legislative  bodies  chosen  by 
the  people  are  a  very  late  development  of  advanced  civiliza- 
tion. Judicial  functions  are  exercised  by  the  king  in  person 
in  a  small  despotism,  and  in  larger  ones  by  persons  appointed 
by  him  to  act  in  his  stead.  The  Greeks  and  Romans  give  us 
the  earliest  known  well  defined  division  of  powers  among  the 
three  departments  of  government.  This  division  now  obtains 
throughout  Europe  as  well  as  America,  and  is  being  extended 
into  Asia.  The  separation  of  executive,  legislative  and  ju- 
dicial functions  is  nowhere  complete.  In  most  monarchical 
countries  the  chief  executive  officers  under  the  crown  take  the 
mitiative  in  the  most  important  legislation  and  have  a  voice 
in  the  deliberations  of  the  Parliament,  and  all  laws  require 
the  approval  of  the  king.  In  Great  Britain  the  ministry  exer- 
cise the  executive  functions  with  no  substantial  interference 
from  the  king.  They  are  always  in  accord  with  the  majority 
in  Parliament,  for  whenever  they  cease  to  be  so  a  new  cabinet 
is  formed  and  the  House  of  Commons  is  usually  dissolved 
and  new  members  elected.  In  all  countries,  where  there  is  a 
separation  of  executive  and  legislative  powers,  it  is  necessary 
that  the  executive  departments  report  to  the  legislative  the 
needs  of  the  public  service  and  submit  estimates  of  the  moneys 
required  for  each  and  the  requirements  of  men  for  military, 
naval  and  civil  service. 

In  the  United  States  the  president  and  the  governors  of  the 
states  make  recommendations  respectively  to  Congress  and  to 
the  legislatures  through  written  messages,  but  are  not  allowed 
to  take  any  part  in  their  deliberations ;  nor  are  any  other  ex- 
ecutive officers  entitled  to  do  so.  The  President  has  a  veto 
on  acts  of  Congress,  but  this  may  be  overriden  by  a  vote  of 
two-thirds  of  each  house  and  the  law  enacted  without  his  sanc- 
tion. Similar  rules  apply  to  the  governors  and  state  legisla- 
tures. The  influence  of  the  chief  executive  under  the  system 
of  political  parties  which  has  prevailed  from  early  times  de- 
pends on  whether  his  party  is  in  the  majority  in  the  two  houses 
of  Congress,  or  the  legislature  of  his  state.  When  the  ex- 
ecutive is  in  political  accord  with  the  majority  in  both  houses 
his  influence  is  usually  very  potent  in  shaping  legislation ;  when 


72  EVO'LUTION  OF  GOVERNMENTS  AND  LAWS 

he  is  not  his  influence  over  appropriations  of  money  may  still 
be  great  through  estimates  of  the  public  needs,  but  as  to  other 
matters  of  legislation  it  may  be  very  small.  In  this  particular 
the  system  is  lacking  in  efficiency  and  ultra  conservative. 

While  judicial  power  has  been  taken  away  from  chief  ex- 
ecutives in  all  civilized  nations,  the  appointment  of  the  judges 
is  still  a  function  of  the  chief  executive  in  Europe,  and  for 
the  federal  courts  in  the  United  States  and  the  state  courts 
of  some  of  the  states.  In  others  they  are  chosen  by  the  legis- 
lature, but  in  most  of  the  states  they  are  now  elected  by  the 
people.  The  judicial  function  of  trying  impeachments  of 
presidents  and  other  civil  officers  of  the  United  States,  includ- 
ing judges  of  the  federal  courts,  is  vested  in  the  senate  of 
the  United  States,  and  of  the  governors  and  other  state  offi- 
cers in  the  state  senates.  Impeachment  by  charges  preferred 
by  the  lower  legislative  body  and  tried  by  the  upper  is  not  an 
efficient  method  of  punishing  public  officers  for  misfeasance 
m  office.  It  may  be  wise  to  have  so  conservative  a  remedy  in 
the  case  of  the  president  and  vice-president,  but  as  to  all  other 
officers  it  is  an  impracticable  scheme. 

The  exe'tutive  head  of  every  country,  by  whatever  name  he 
may  be  called,  is  always  commander  in  chief  of  the  army  and 
navy  and  the  representative  of  the  nation  in  all  dealings  with 
foreign  nations.  All  civil  as  well  as  military  officers,  except 
such  as  are  made  elective  by  the  legislature  or  by  popular  vote 
are  also  appointed  by  the  chief  executive.  While  the  law- 
making power  levies  the  taxes  and  gives  general  directions 
for  its  appropriation,  it  is  the  executive  officers  who  collect 
the  money  and  use  it.  By  reason  of  its  control  of  appoint- 
ments to  office,  of  the  expenditure  of  public  funds  and  its 
daily  contact  with  the  people  in  the  transaction  of  the  public 
business,  the  executive  department  exerts  a  powerful  influence 
both  on  the  legislative  department  and  public  sentiment. 
Theoretically  in  the  United  States  it  is  subject  to  the  direc- 
tion of  the  legislative  and  judicial  branches  of  the  government 
acting  within  their  respective  spheres.  It  is  subject  to  the 
laws,  and  executive  officers  are  bound  to  carry  the  judgments 
of  the  courts  into  execution.     They  are  liable  to  trial  and 


INTRODUCTION  7Z 

punishment  by  the  courts  for  their  violations  of  law  and 
duty,  and  in  some  instances  in  some  of  the  states  to  removal 
from  office  by  them.  The  vast  executive  powers  of  the  general 
government  of  the  United  States  are  concentrated  in  the 
President.  The  heads  of  the  executive  departments  are  ap- 
pointed by  him  and  are  his  advisers,  but  they  hold  office  during 
his  pleasure  only,  and  he  has  power  to  remove  them  and  ap- 
point others  at  will.  The  states  have  a  far  less  forceful  ex- 
ecutive head.  In  most  of  them  the  chief  executive  officers 
other  than  the  governor  are  also  elected  by  the  people,  and 
are  not  subject  to  removal  by  him.  The  greatly  superior 
efficiency  of  the  federal  plan  has  not  yet  induced  the  states  to 
model  their  executive  departments  after  it. 
^  In  the  discharge  of  executive  duties  it  often  becomes  neces- 
sary to  determine  questions  of  fact  preliminary  to  the  per- 
formance of  a  duty.  This  the  executive  officer  who  is  called 
on  to  act  does  summarily  in  his  own  way,  usually  without  any 
formal  trial.  Perhaps  the  most  important  instances  occur  in 
matters  affecting  the  friendly  relations  of  the  country  with  a 
foreign  power.  The  protection  of  citizens  temporarily  in 
foreign  states  frequently  makes  it  necessary  to  inquire  into 
transactions  occurring  in  remote  parts  of  the  earth.  In 
exercising  the  pardoning  power  an  inquiry  into  the  character 
and  conduct  of  the  applicant  for  mercy  closely  analogous  to  a 
judicial  trial  of  a  question  of  fact  is  necessary,  though  the 
proceeding  is  wholly  discretionary  with  the  executive  in  most 
states  and  countries. 

The  moral  progress  of  the  world  is  exhibited  by  the  steady 
and  rapid  evolution  of  executive  departments  into  agencies 
for  the  discharge  of  useful  peaceful  functions,  and  the  ten- 
dency to  slough  off  the  baneful  military  activities.  While  in- 
ventions of  destructive  agents  and  instruments  have  kept  pace 
with  the  inventions  of  useful  ones,  and  while  the  nations  still 
waste  their  energies,  their  substance  and  their  men  in  need- 
less and  vicious  armaments  and  war  preparations,  the  utter 
immorality  of  aggressive  wars  is  recognized,  and  the  exec- 
utives of  all  advanced  states  feel  the  restraining  influences  of 
an  advancine  moralitv  which  condemns  war. 


74  EVOLUTION  OF  GOVERNMENTS  A)ND  LAWS 

Checks  and  Balances  of  Governmental  Powers 

Much  has  been  said  by  writers  on  poHtical  economy  in  com- 
mendation of  the  plan  of  restraining  each  branch  of  the  gov- 
ernment within  its  useful  field  by  placing  a  countervailing 
power  in  another  branch,  and  there  can  be  no  doubt  of  the 
value  of  such  balances  of  power.  Nevertheless  the  ultimate 
effective  checks  must  always  remain  with  the  general  body  of 
citizens  and  be  kept  alive  by  education  and  an  active  public 
sentiment;  else  they  soon  lose  all  potency.  The  true  theory 
of  all  official  power  is  that  of  agency  to  do  particular  things, 
not  of  a  general  agency  subject  only  to  a  few  special  limi- 
tations. The  balancing  of  powers  by  constituting  different 
agencies  to  act  as  checks  on  each  other  has  been  tried  often 
and  in  a  great  variety  of  ways,  but  nowhere  with  ideal  results. 
The  Chinese  imperial  system,  so  far  as  all  officers  under  the 
emperor  were  concerned,  was  based  on  this  idea,  but  corrup- 
tion and  inefficiency  were  the  rule  rather  than  the  exception. 
Rome  set  tribunes  against  consuls  and  massed  plchs  against 
patres,  yet  the  senate  continued  to  rule  till  overawed  by  the 
legions  under  military  leaders.  A  government  of  limited 
powers  exercised  for  short  periods  by  persons  taken  from  and 
returned  to  the  general  mass  of  citizens  is  least  dangerous  to 
liberty.  The  objections  to  it  are  lack  of  continuity  of  pur- 
pose and  efficiency.  In  a  country  where  ignorance  and  im- 
morality prevail  these  objections  are  valid.  Liberty  and  order 
are  impossible  without  self-restraint  exercised  voluntarily  by 
the  great  majority  of  the  people.  Education  is  by  all  odds 
the  most  potent  factor  in  maintaining  any  governmental  sys- 

^  tem.  This  is  more  clearly  illustrated  by  the  Asiatic  govern- 
ments than  by  the  European,  where  illiteracy  has  prevailed 
until  very  recent  times  with  the  exception  of  the  Greek  and 

^  Roman  periods.  A  definite  system  of  education  in  law,  re- 
ligion and  social  organization,  enforced  as  a  divine  ordinance, 
has  moulded  the  character  of  all  Hindoo  society  for  thousands 

1  of  years.  The  Mohammedan  system  has  been  similarly  pro- 
pagated. The  Chinese  books  and  teachers  have  played  an 
equally  important  part  in  preserving  the  peculiar  institutions 


INTRODUCTION  75 

of  that  country  and  securing  obedience  to  much  that  appears 
to  Europeans  as  unquaHfiedly  bad.  Europe  and  America  have  ^ 
also  been  greatly  influenced  by  the  teachings  of  the  Bible,  also 
of  Asiatic  origin,  which  have  been  accepted  as  religious  truth, 
but  not  as  a  guide  in  the  formation  of  governments,  or  a  sys-  .. 
tem  of  laws  to  be  administered  in  the  courts.  In  this  it  will 
be  seen  that  the  use  of  the  Bible  as  a  sacred  book  is  somewhat 
anomalous,  for  the  Koran  and  the  Code  of  Manu  are  of  the 
highest  authority  as  books  of  law  in  all  courts  where  their 
religious  authority  is  accepted.  The  morals  of  the  Old  Testa- 
ment are  discarded  as  too  low  for  this  age.  The  Christian 
conception  of  universal  love  for  all  humanity  indicates  the 
ideal  social  condition,  without  elaborating  the  details  of  the 
application  of  it  to  the  particulars  of  human  conduct.  Love 
as  a  passion  is  not  universal,  but  partial,  responding  to  in- 
fluences not  always  readily  comprehended.  Though  capable 
of  stimulation  by  education,  its  mainspring  rests  in  the  seat  of 
the  emotions  of  the  person.  The  heart  responds  to  impulses 
that  no  one  can  wholly  control.  If  all  could  be  induced  to  act 
as  love  for  each  and  all  would  dictate,  the  destructive  and 
corrective  functions  of  government  would  be  eliminated  at  ^ 
once,  for  there  would  be  nothing  left  on  which  to  act.  Wars 
would  cease,  and  those  who  now  commit  crimes  would  be 
wholly  absorbed  in  harmless  activities,  beneficial  to  themselves 
or  to  others.  Government  in  its  sinister,  meddlesome  and 
cruel  sense  might  at  once  be  dispensed  with.  But  this  would 
not  do  away  with  the  necessity  for  social  organization.  Great 
numbers  cannot  act  in  concert  for  their  mutual  benefit  with- 
out rules  governing  the  conduct  of  each  and  an  apportionment 
of  duties.  Schools  for  the  instruction  of  all  in  the  rudiments 
of  letters,  science  and  the  arts  and  special  instruction  for. 
each  to  qualify  him  for  his  particular  part  in  life  will  always 
be  necessary.  Until  the  ideal  Christian  spirit  is  universal  it 
will  continue  to  be  necessary  for  the  people  to  guard  against 
abuses  of  governmental  powers.  The  idea  of  oflicial  checks 
balancing  each  other  is  based  on  the  theory  of  a  governmental 
force  above  the  people.  Unless  those  for  whom  powers  are 
exercised  are  capable  of  approving  or  condemning  the  acts  of 


7^  EVOLUTION  OF  GOVERNMENTS  /^ND  LAWS 

their  agents  according  to  their  merits,  it  is  idle  to  expect  one 
set  of  officials  to  protect  the  people  effectively  against  an- 
other. It  is  quite  too  easy  for  the  two  sets,  chosen  to  watch 
each  other,  to  combine  for  their  common  advantage  against 
the  general  public.  History  is  full  of  such  combinations  in 
the  United  States  as  well  as  in  China. 

General  Purposes  of  Government 

The  central  idea  of  government  is  an  organization  through 
which  the  combined  force  of  many  may  be  exerted.  The  ob- 
jects to  be  accomplished  by  the  use  of  this  force  may  be  bene- 
ficial to  all,  to  a  few  or  to  one  alone,  and  they  may  benefit  all 
or  a  part,  but  in  unequal  degrees.  Where  the  government 
takes  the  form  of  an  unlimited  monarchy,  the  ruler  has  the 
power  to  take  for  himself  and  his  favorities  all  of  the  bene- 
fits, and  to  place  all  of  the  burdens  on  the  multitude.  The 
monarch  may  desire  the  general  welfare  of  his  subjects,  and 
may  promote  it  in  some  ways,  but  the  maintenance  of  his 
authority  is  dependent  on  suppressing  popular  impulses  in 
public  affairs.  The  average  man  magnifies  his  own  merits 
and  importance  and  minimizes  those  of  others.  He  also  sym- 
pathizes most  with  those  near  him.  So  it  inevitably  comes 
about  in  a  despotism  that  the  monarch  and  his  favorites  en- 
gross the  benefits  of  the  state's  power,  and  by  a  law  of  moral 
•  compensation  the  excessive  advantages  enjoyed  curse  the  favo- 
rites with  low  moral  standards  and  such  consequences  as 
naturally  result  from  them.  Where  the  form  of  the  govern- 
ment is  that  of  an  aristocracy,  the  beneficiaries  may  be  more 
numerous,  though  not  necessarily  so.  Where  they  act  in  con- 
cert the  result  is  much  the  same  as  in  the  case  of  the  despot- 
ism, but  there  are  more  heads  to  be  gratified,  and  the  rapacity 
of  each  is  liable  to  encounter  some  resistance  from  the  others. 
The  proletariat  are  still  without  power  to  enforce  their  rights. 
In  popular  governments  the  theory  is  that  powers  are  delegated 
to  public  servants,  to  be  used  for  the  benefit  of  all,  and  that 
the  benefits  and  burdens  of  government  are  impartially  dis- 
tributed. An  art,  however,  corresponding  to  that  of  the 
courtiers,  develops  in  the  republic,  and  through  specious  pre- 


IXTRO'DUCTIOX  ^7 

texts  crafty  men  employ  the  powers  of  the  state  for  their  own 
enrichment  in  different  ways,  but  with  results  similar  to  those 
of  the  courtier's  f awnings.  The  form  of  the  government  does 
not  eliminate  the  disposition  to  be  unjust,  nor  are  the  balances 
cf  powers  so  adjusted  as  to  enable  the  many  who  bear  the 
burdens  to  effectually  curb  the  rapacity  of  those  who  gain  un- 
merited favors  from  legislatures,  courts  and  administrative 
officers.  Arbitrary  laws  sanctioning  slavery,  land  monopoly, 
and  special  privileges  in  trade,  transportation,  manufacturing, 
mining  and  supplying  various  needs  of  the  public,  work  out 
systems  of  favoritism  and  oppression.  These  are  aside  from 
the  direct  exercises  of  the  powers  of  the  government  for  the 
enrichment  of  the  officials  and  their  friends.  Even  in  the 
best  ordered  republic  the  taxing  power  is  exercised  to  some 
extent  merely  to  favor  a  few  persons. 

The  prudent  individual  seeks  to  mark  out  for  himself  a  line 
of  conduct  reaching  through  some  or  all  of  the  balance  of  his 
life,  which  he  believes  will  conduce  to  his  future  welfare.  He^ 
does  best  who  follows  a  course  which  tends  to  continually 
make  him  stronger,  better  and  happier.  Close  observance  of  '^ 
the  moral  law  and  of  every  precept  of  it  will  generally  tend 
to  a  long  life  of  increasing  enjoyment.  Neglect  of  the  needs 
of  the  body  induces  weakness  and  disease,  neglect  of  the  mind, 
ignorance  and  dependence ;  idleness  and  wastefulness  poverty ; 
hatred  and  envy,  enmity  and  suffering.  On  the  other  hand 
the  performance  of  every  duty  to  himself  and  to  others  tends 
to  health,  prosperity  and  happiness.  The  rules  by  which  the 
individual  governs  his  own  conduct  are  the  product  of  his 
education,  environment  and  native  mental  force.  He  may 
observe  them  steadily  or  spasmodically  with  corresponding 
results,  but  death  ends  the  accessible  record  of  success,  failure, 
pleasure  and  pain.  The  state  seeks  to  direct  the  destinies  of 
many  people.  Its  legitimate  object  is  essentially  similar  to 
that  of  the  private  person,  that  is  to  promote  the  welfare  and 
increase  the  happiness  of  its  citizens,  but  it  has  no  fixed  limit 
of  numbers  of  persons  affected  or  duration  of  its  influence. 
To  accomplish  this  result  it  must  cause  the  observance  by  the 
people  of  those  rules  of  conduct  which  tend  to  propagate  con- 


78  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ditions  favorable  to  human  happiness,  and  to  ehminate  conduct 
destructive  in  its  tendencies.  The  state  looks  not  merely  to 
the  welfare  of  persons  now  living,  but  of  the  race  in  future 
generations.  Its  rules  therefore  must  have  a  wider  range  of 
present  application  and  look  forward  to  more  remote  conse- 
quences. Though  immoral  conduct  may  appear  profitable  for 
short  periods  and  to  a  limited  class,  time  surely  discloses  its 
destructiveness.  Bentham's  test  of  utility,  given  general  ap- 
plication to  all  alike  and  carried  to  its  remote  consequences,  is 
a  test  of  morality.  His  measurement  of  utility  by  the  pleasure 
or  pain  produced  may  admit  of  more  doubt,  for  the  dividing 
line  between  sensations  of  pleasure  and  of  pain  is  often  in- 
capable of  ascertainment,  and  disagreeable  sensation  seem  es- 
sential to  our  vital  processes.  Life,  health,  strength,  knowl- 
edge, beauty,  abundance  of  usable  things,  the  love  of  friends 
and  good  will  of  all,  are  generally  regarded  as  desirable. 
There  are  certain  lines  of  conduct  that  tend  to  produce  and 
preserve  these  blessings.  There  are  others  that  prove  destruc- 
tive of  them.  It  would  seem  that  the  legitimate  function  of 
the  state  is  to  search  out  and  declare  as  substantive  law  what 
rules  of  conduct  are  beneficial  in  their  tendencies,  and  what 
are  destructive,  and  to  devise  governmental  machinery  de- 
signed to  induce  observance  of  the  former  and  avoidance  of 
the  latter,  and  that  moral  improvement  and  material  advance- 
ment should  continually  accrue  as  the  product  of  legislative 
wisdom  and  foresight.  To  what  extent  such  functions  have 
been  recognized  and  exercised  by  the  governments  of  the 
leading  nations  of  the  earth  is  one  of  the  main  subjects  of  our 
inquiry.  It  will  be  found  that  the  organized  forces  of  society, 
especially  in  the  hands  of  a  single  ruler,  are  often  exerted  to 
destroy,  rather  than  to  build  up,  and  that  all  the  nations  of 
the  earth  look  to  armies  and  navies  as  means  of  gain  and 
preservation,  rather  than  to  the  cultivation  of  those  firm  bonds 
cf  friendship  which  are  indispensable  to  peaceful  relations. 

The  rule  of  progress  is  good  for  evil,  kindness  to  overcome 
hatred.  Viewed  merely  as  a  cold  and  passionless  artificial 
being,  the  true  mission  of  the  state  is,  and  always  must  be, 
to  keep  people  from  harming  each  other,  and  to  lead  them  to 


INTRODUCTION  79 

move  in  concord  in  the  accomplishment  of  purposes  beneficial 
to  all.  If  all  were  fully  employed  in  moral  pursuits,  crime 
would  disappear  as  a  necessary  result. 

Selfishness  has  its  root  in  our  natures,  and  care  for  self 
is  a  moral  duty.  Care  for  our  progeny  is  both  a  privilege 
and  a  duty,  and  affords  one  of  the  most  powerful  incentives 
to  the  accumulation  of  wealth  and  mastery  over  others.  In 
the  struggle  to  gain  these  many  parents  fail  to  comprehend 
the  relative  value  of  mere  inherited  wealth  and  of  favorable 
conditions  for  their  children  to  live  natural  useful  lives.  It 
is  only  when  we  clearly  perceive  that  the  welfare  of  our 
progeny  is  inevitably  locked  with  that  of  the  descendants  of 
our  neighbors,  and  that  the  only  safety  for  any  lies  in  high 
moral  standards,  justice  to  all,  and  the  growth  and  extension 
of  kindness  both  as  a  sentiment  and  a  recognized  rule  of 
conduct,  essential  to  human  happiness,  that  it  is  possible  to 
make  the  best  provision  for  future  generations.  Instead  of 
starting  life  with  great  wealth  and  a  contempt  for  useful 
labor,  it  is  far  better  for  any  normal  healthy  child  to  be 
trained  to  do  his  part  and  bear  his  share  of  the  burdens  of 
life,  and  taught  that  the  largest  and  best  life  is  that  which 
accomplishes  most  for  the  good  of  others. 

Not  to  destroy  enemies  by  war,  but  to  destroy  enmity  by 
kindness  and  friendly  intercourse;  not  to  punish  criminals, 
but  to  eliminate  crime  by  inducing  right  conduct;  not  to  force 
the  unwilling  performance  of  duty,  but  to  lead  men  to  vol- 
untarily follow  high  moral  standards  for  the  joy  of  well 
doing ;  not  to  enforce  obedience  to  the  arbitrary  will  of  rulers, 
but  to  induce  the  acceptance  of  such  direction  as  is  essential 
to  concert  of  action;  not  to  stifle  individual  liberty,  but  to 
encourage  and  protect  in  all  worthy  efforts  and  enterprises, 
are  the  ideal  purposes  of  governments  and  laws.  How  the 
nations  of  the  earth  have  been  afflicted  with  ignorance  of 
these  fundamental  truths,  how  those  in  authority  have  dis- 
regarded them,  and  how  the  people  have  suffered  by  reason 
thereof,  we  shall  see  in  our  brief  review  of  the  rise  and  fall 
of  states,  and  the  principles  by  which  they  have  been  governed. 


CHAPTER  I 

Unorganized  Tribes 

In  the  lowest  social  state  we  find  individual  liberty  wholly 
unrestrained.  The  weak  and  despicable  Digger  Indians, 
dwelling  in  rocky  and  desert  places,  feeding  on  the  most 
disgusting  fare,  though  they  have  chiefs  in  accordance  with 
the  customs  of  the  more  vigorous  branches  of  the  Utah 
family,  recognize  no  authority  in  them,  and  each  individual 
follows  the  dictates  of  his  own  torpid  will. 

The  lower  Californians  did  not  differ  greatly  from  the 
Diggers  in  modes  of  life,  though  living  under  more  favor- 
able surroundings  and  exhibiting  more  providence  in  the 
manufacture  of  weapons  and  utensils.  With  well  formed  and 
vigorous  bodies  and  not  wanting  in  courage,  they  lived  with- 
out habitations,  government  or  laws  and  paired  off  at  pleasure 
without  a  conception  of  the  marriage  relation.  The  Yaghans 
of  Tierra  Del  Fuego,  living  in  a  most  inhospitable  clime  and 
under  circumstances  rendering  concert  of  action  indispensable 
to  even  a  small  degree  of  comfort,  yet  dwell  apart,  each  family 
by  itself,  naked  and  without  shelter,  recognizing  neither  chief 
nor  laws  and  feeding  on  their  own  kind. 

The  Eskimos  on  the  inhospitable  shore  of  the  Arctic  Ocean, 
though  far  superior  in  industry,  intelligence  and  nearly  every- 
thing else,  except  cleanliness,  are  also  said  to  recognize  no 
authority.  Probably  this  is  due  to  the  necessity  for  living  in 
very  small  villages,  owing  to  the  barrenness  of  the  country 
and  the  peculiar  climatic  conditions  under  which  they  live. 
The  long  night  of  winter  prevents  intercourse  with  others 
living  at  a  distance  and  effectually  isolates  each  group.  Dur- 
ing the  brief  but  busy  summer,  hunting  and  fishing  occupy 
their  attention.  For  this  concert  of  action  in  great  numbers 
is  not  advantageous.  More  can  be  accomplished  by  separat- 
ing than  by  combining.     Isolated   from  the  balance  of   the 

80 


UNORGANIZED  TRIBES  8i 

world  and  having  little  to  excite  the  cupidity  of  others,  they 
are  not  often  forced  to  fight,  but  they  are  reputed  courageous 
and  vigorous  when  put  to  the  test.^ 

It  appears  that  life  in  the  hunter  or  fisher  state  tends  to 
individuality  and  the  absence  of  social  organization.  It  is 
believed  that  no  instance  can  be  cited  of  a  race  of  people, 
living  exclusively  from  hunting  or  fishing  and  the  spontan- 
eous products  of  the  earth,  that  has  passed  the  stage  of  simple 
tribal  organization.  Though  the  civilized  man  can  readily 
perceive  the  advantages  that  might  accrue  to  them  from  con- 
cert of  action,  conditions  are  not  such  as  to  develop  it,  and 
probably,  if  once  developed,  any  form  of  extensive  organiza- 
tion would  soon  fall  in  pieces  without  a  marked  change  in 
the  habits  of  the  people.  Among  the  very  lowest  promiscu- 
ous intercourse  is  the  rule,  and  the  whole  burden  of  rearing 
the  young  is  cast  on  the  mother.  In  a  great  majority  of  in- 
stances, where  a  permanent  relation  is  recognized  as  existing 
between  the  man  and  woman,  the  latter  is  treated  as  a  slave 
and  forced  to  bear  his  burdens  as  well  as  her  own  and  those 
of  her  offspring. 

The  natives  of  Australia  appear  to  have  been  below  the 
average  of  the  American  Indians  in  most  respects.  It  is  said 
that  they  did  not  till  the  soil  at  all,  their  habitations  were  of 
the  most  crude  and  temporary  character,  being  mostly  of  bark 
or  brush.  In  the  manufacture  of  weapons  and  implements 
they  exhibited  little  skill  or  ingenuity,  having  no  knowledge 
of  metals  or  skill  in  weaving  fabrics.  They  did  not  know  the 
use  of  the  bow  and  arrov;,  the  almost  universal  weapon  of 
primitive  man,  yet  the  boomerang,  a  most  curious  invention 
unknown  elsewhere,  is  their  peculiar  weapon.  In  government 
they  do  not  appear  to  have  ever  advanced  beyond  the  tribal 
stage,  with  very  little  power  in  their  chiefs.  As  with  most 
savages  the  women  are  oppressed  and  enslaved  by  the  men 
and  family  ties  are  very  weak. 

In  attempting  a  close  study  of  the  development  of  the  first 

^  For  a  more  full  statement  of  the  various  customs  cencerning  the  rela- 
tions of  the  sexes  see  Brissaud's  "History  of  French  Private  Law."  Con- 
tinental Legal  History  Series,  Vol.  3,  p.  i. 


82  EVOLUTION  OF  GOViERXMEXTS  AiND  LAWS 

steps  toward  the  formation  of  a  government,  we  are  met  by 
a  surprising  complication  of  difficulties.  Savage  tribes  can 
furnish  no  accurate  history  of  their  own  development.  The 
moment  they  are  brought  into  close  contact  with  superior 
people,  the  course  of  their  development  is  affected  to  a  greater 
or  less  degree  by  the  extraneous  influences  to  which  they  are 
subjected.  Habits  of  Hfe,  fashions  in  dress  and  modes  of 
warfare  are  quickly  adapted  to  new  conditions.  Thus  in 
America  those  who  describe  the  Comanche  Indian  place  him 
on  horseback,  though  the  horse  was  first. brought  here  by  the 
white  man.  Blankets  and  beads  were  worn  by  the  natives  of 
the  eastern  and  middle  states  long  before  the  revolutionary 
war,  and  a  description  of  an  Indian  costume  without  them 
was  hardly  complete,  though  the  material  came  from  Europe. 
Guns  and  knives  soon  supplanted  bows  and  tomahawks. 
Again  the  wars  and  migrations  of  tribes,  the  changing  con- 
ditions and  vicissitudes  under  which  they  lived,  afford  no  op- 
portunity to  study  a  continuing  development  of  a  particular 
tribe  or  nation. 

Few  if  any  American  Indians  can  now  be  found  whose 
character,  customs  and  even  tribal  organizations  have  not  been 
changed  and  moulded  by  the  influence  of  the  whites.  Those 
that  have  remained  near  their  ancestral  homes  have  little  left 
of  the  character  or  habits  of  their  wild  ancestors.  Those 
that  have  been  removed  to  western  reservations  have  also  felt 
the  effects  of  the  teachings  and  examples  of  the  whites,  often 
to  their  destruction.  This  frequent  and  extreme  subjection 
to  vicissitudes  is,  however,  a  characteristic  of  the  savage  state, 
and  no  one  need  ever  hope  for  an  opportunity  to  calmly  study 
the  development  of  any  savage  people,  uncontaminated  by 
contact  with  more  civilized  people  for  many  consecutive  gen- 
erations. The  reason  for  this  is  plain.  Steady  development 
demands  steady  conditions.  Not  only  were  the  Indian  tribes 
subject  to  destruction  at  the  hands  of  their  enemies,  but  their 
indolence  and  improvidence  left  them  constantly  liable  to 
famine,  which  often  depopulated  their  villages. 

The  rudimentary  society  is  always  domestic  in  character, 
but  usually  it  is  the  rule  of  the  strong  male  over  the  female 


UNORGANIZED  TRIBES  83 

slave.  In  all  quarters  of  the  globe  warlike  savages  have  been 
accustomed  to  enslave  prisoners  whom  they  did  not  kill.  Yet 
the  custom  of  adopting  even  prisoners  of  war  to  whom  the 
captor  chances  to  take  a  liking  is  not  uncommon.  This  was 
the  settled  policy  of  the  Iroquois  and  a  great  source  of 
strength.  The  slavery  is  generally  temporary  in  character, 
resulting  soon  in  death  or  emancipation  of  the  slave.  The 
habits  of  life  of  the  savage  are  not  such  as  to  admit  of  the 
propagation  and  preservation  of  a  servile  race.  In  our  efforts 
to  generalize  the  earliest  appearances  of  social  organization, 
we  are  liable  to  take  up  a  preconceived  theory  and  proceed 
with  a  smooth  and  logical  narration  of  orderly  development. 
But,  when  we  attempt  to  cite  authorities  and  demonstrate  the 
correctness  of  our  theories  from  known  instances,  we  are 
met  with  innumerable  perplexities  and  apparent  contradic- 
tions. Observers  who  are  ignorant  of  the  language  of  the 
people  they  attempt  to  describe  often  give  most  unsatisfactory 
accounts.  They  report  what  they  see  and  often  fill  out  their 
descriptions  with  what  they  infer  to  be  true.  But  as  we  pro- 
ceed we  shall  find  that  these  difiiculties  attend  the  study  of 
the  development  of  governments  in  all  forms  and  stages  in  a 
marked  degree,  and  that  the  human  capacity  and  desire  to 
choose  and  invent  leads  to  most  perplexing  want  of  uniform- 
ity in  the  development  of  socia4  order.  While  the  earliest 
form  of  mastery  and  rulership  of  a  permanent  character  ap- 
pears to  be  domestic  and  a  personal  mastery  of  one  over  an- 
other, the  next  step  generally  has  its  foundation  in  war. 

Attthorities 

Bancroft :    Native  Races  of  the  Pacific  States. 
Schoolcraft :    Indian  Tribes  of  the  United  States. 
Encyclopaedia  Britannica — passim. 


CHAPTER  II 

Tribal  Organizations  and   Simple  Despotisms 

Passing  from  our  imperfect  view  of  the  most  low  and 
repulsive  specimens  of  human  beings  to  those  possessing  more 
intelligence  and  exhibiting  tendencies  toward  social  organi- 
zations, we  find  everywhere  that  customs,  superstitions  and 
fashions  precede  governments  and  laws.  The  tribal  organi- 
zations of  hunters  and  fishers  do  not  possess  the  true  at- 
tributes of  government,  in  the  sense  in  which  it  is  used  by 
civilized  man,  to  as  great  an  extent  as  one  of  the  many  great 
corporations  of  modern  times.  The  authority  of  the  chiefs 
is  hardly  more  than  advisory.  Matters  affecting  the  tribe  are 
usually  determined  by  public  assemblies,  and  war  parties  are 
made  up  of  volunteers  who  submit  to  neither  discipline  nor 
command.  Yet  everywhere  and  even  among  the  very  lowest, 
customs,  ceremonies  and  fashions  are  found  to  exist,  the  ob- 
servance of  which  is  compelled  by  public  sentiment.  These 
are  often  most  cruel  and  unnatural.  Let  us  examine  some  of 
them. 

The  custom  of  perforating  the  lips,  nose  and  ears,  of  cut- 
ting off  fingers,  making  incisions  in  the  flesh  and  inserting 
most  unsightly  ornaments  in  lips,  nose  and  ears  is  common 
with  more  or  less  variation  among  American  Indians,  Afri- 
can tribes  and  Polynesians.  Thus  the  Thlinkeet  women  slit 
the  under  lip  and  gradually  enlarge  the  opening  until  a  large 
block  of  wood  is  inserted  from  two  to  six  inches  in  length  and 
from  one  to  four  inches  in  width  and  half  an  inch  thick.  It 
is  so  large  that  when  withdrawn  the  lip  falls  over  on  the  chin. 

The  Koniagas  and  Thlinkeets  imprison  girls  arriving  at  the 
age  of  puberty  in  huts  so  small  as  to  keep  them  continually  in 
a  cramped  position  for  six  months  or  even  a  year.  Dances 
and  feasts  of  various  kinds  are  characteristic  of  savages  every- 
where.   Love  of  ornament  seems  to  precede  a  desire  for  cloth- 

84 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     85 

ing.  Thus  in  many  parts  of  the  world  savages  may  be  found 
tattooed,  painted,  adorned  with  feathers,  quills,  rings,  shells, 
stone  and  wooden  ornaments,  often  hideous  in  appearance  to 
the  stranger,  but  rigidly  exacted  by  custom,  while  covering 
for  decency  or  comfort  is  not  thought  of.  The  Indians  of 
North  America  were  remarkably  formal  and  ceremonious  in 
all  their  negotiations  and  consultations.  Their  grand  councils 
are  sometimes  described  as  models  of  decorous  procedure. 
Marriage  ceremonies  were  not  generally  very  formal,  and  the 
bond  of  union  often  not  of  great  force.  Polygamy  was  gen- 
erally allowed,  but  monogamy  was  the  rule.  They  were  un- 
doubtedly far  more  lax  in  morals  than  the  whites,  yet  the 
difference  is  still  of  degree.  The  Indian  lodges  among  the 
leading  tribes  sheltered  families  where  continency  and  affec- 
tion were  not  wholly  unknown.  Among  them  there  were 
marked  differences  as  well  in  moral  character  as  in  mental 
capacity.  The  curious  custom  of  dividing  the  tribes  by  totems 
was  not  a  mere  whim  but  had  its  foundation  in  a  sound  policy, 
and  the  rules  relating  to  marriages  based  on  it  tended  to  check 
too  close  in  and  in  breeding,  likely  to  occur  where  people 
were  divided  into  such  small  societies.  Funeral  rites  were 
often  impressive  and  proportioned  to  the  estimation  in  which 
the  deceased  was  held.  Medicine  men  imposed  on  the  igno- 
rant with  their  charms,  incantations,  and  absurd  remedies,  yet 
the  medicinal  properties  of  some  plants  were  known  and  with 
all  their  filthiness  the  natives  of  the  Pacific  coast  appreciated 
the  value  of  a  hot  bath,  for  which  most  tribes  provided  a  crude 
bath-house.  Alcholic  stimulants  seem  to  have  been  wholly 
unknown  to  them.  Their  only  intoxication  was  that  resulting 
from  war  dances,  superstition  and  bloodshed,  by  which  at 
times  they  were  wrought  to  a  state  of  frenzy.  Tobacco  was 
much  used  and  stupor  and  sickness  often  resulted  from  their 
gluttony  at  feasts.  Undoubtedly  the  wild  tribes  of  America 
exhibited,  over  an  extensive  area  and  under  diverse  circum- 
stances, the  first  beginnings  of  organized  societies  more  com- 
pletely than  any  other  people.  While  many  variations  of 
manners  and  customs  are  to  be  noted,  there  was  a  marked 
similarity  in  their  crude  tribal  organizations,  clearly  traceable 


86  EVOLUTION  OF  GOVERNMENTS  A)ND  LAWS 

to  their  habits  of  Hfe  and  environments.  The  Indian  was 
first  and  mainly  a  warrior,  but  to  hve  he  must  hunt  and  fish. 
Though  most  of  the  eastern  tribes  raised  a  httle  corn  and 
some  few  other  vegetables,  they  still  relied  mainly  on  game 
for  their  subsistence. 

Their  only  conception  of  title  to  land  was  for  a  hunting 
ground  and  temporary  occupancy.  This  title  each  tribe  was 
called  on  to  maintain  against  the  encroachments  of  hostile 
neighbors.  With  their  habits  of  life,  a  dense  population 
could  not  be  maintained  nor  a  large  city  be  built.  Their 
property  consisted  only  of  weapons,  temporary  movable 
lodges  and  spoils  of  the  chase,  supplemented  by  crude  house- 
hold utensils  made  from  wood  or  stone.  Moneys  and  reve- 
nues they  did  not  know.  In  seeking  to  understand  their 
government  it  is  of  first  importance  to  know  what  could  be 
governed.  This  ordinarily  was  a  village  of  a  few  lodges, 
seldom  more  than  one  hundred.  The  people  of  the  village 
were  mostly  related  by  blood  and  marriage.  Whenever  oc- 
casion required  they  could  easily  come  together  for  consulta- 
tion. Each  was  known  to  the  other.  Personal  prowess  in  war 
and  in  the  chase,  as  well  as  eloquence  and  wisdom  in  council, 
were  quickly  discerned  and  understood  by  all.  There  was 
a  strong  tendency  to  community  of  enjoyment  of  game  taken 
and  crops  gathered.  Under  these  circumstances  leadership 
was  accorded  to  him  who  gained  the  approbation  of  his  fel- 
lows. A  chief  was  a  natural  leader,  chosen  by  his  comrades. 
As  a  ruler  however  he  scarcely  exercised  any  of  the  attributes 
of  sovereign  power.  He  could  not  levy  taxes,  but  was  ex- 
pected to  generously  distribute  the  game  he  secured.  He 
had  no  lands  yielding  rent.  He  could  not  make  laws' for  the 
people  or  declare  war  or  make  peace  for  them.  All  such  mat- 
ters were  referred  to  grand  councils.  His  war  party  as  a 
rule  was  made  up  of  such  as  chose  to  follow  him.  In  battle 
much  more  depended  on  individual  craft  and  bravery  than  on 
generalship.  Here  and  there  throughout  history  we  learn  of 
leaders  who  exhibited  a  capacity  for  organization  and  general- 
ship, and  who  were  able  to  impress  on  scattered  tribes  the  ad- 
vantages of  combination  and  concert  of   action   for  mutual 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     87 

protection.  These  combinations  usually  fell  in  pieces  at  the 
death  of  the  leader. 

The  famous  Iroquois  confederacy  is  an  example  of  a  more 
enduring  and  efficient  combination,  which  enabled  the  six 
nations  to  maintain  their  hold  on  the  rich  hunting  grounds  and 
well  stocked  lakes  and  streams  of  New  York  against  all  hos- 
tile tribes.  Their  superiority  over  hostile  tribes  was  due  to 
their  superior  combination  and  nothing  but  the  irresistible 
march  of  the  whites  was  able  to  destroy  them. 

The  Comanches  also  evidenced  some  capacity  for  organi- 
zation and  maintained  a  powerful  confederacy.  Neither  of 
these  confederacies  however  presents  much  semblance  of  a 
government.  The  levy  of  taxes  and  expenditure  of  the  money 
by  public  officers,  which  plays  so  great  a  part  in  all  advanced 
states,  was  unknown.  The  members  of  the  tribes  were  all 
warriors  with  no  other  calling  to  interfere.  A  levy  of  forces 
was  a  levy  en  masse,  and  public  sentiment  was  always  suffi- 
ciently powerful  to  drive  every  ablebodied  man  to  seek  dis- 
tinction in  war.  While  the  women  and  children  were  usually 
left  in  a  place  of  comparative  safety,  when  war  parties  were 
out  the  organization  of  society  was  not  greatly  changed.  All 
drudgery  was  done  by  the  women  in  peace  as  well  as  in  war, 
and  feasts  and  famines  alternated,  whether  the  males  were 
on  the  war  path  or  in  the  lodges. 

The  ancient  Germans  as  described  by  Caesar  and  Tacitus 
present  many  points  of  resemblance  to  the  Indians  in  customs 
and  environments  as  well  as  in  social  organization,  though  in 
a  much  smaller  territory.  Tacitus  says :  "I  concur  in  opinion 
with  those  who  deem  the  Germans  never  to  have  intermarried 
with  other  nations;  but  to  be  a  race  pure,  unmixed  and 
stamped  with  a  distinct  character.  Hence  a  family  likeness 
pervades  the  whole  though  their  numbers  are  so  great;  eyes 
stern  and  blue,  ruddy  hair,  large  bodies,  powerful  in  sudden 
exertions,  but  impatient  of  toil  and  labor,  least  of  all  capable 
of  sustaining  thirst  and  heat,  cold  and  hunger  they  are  ac- 
customed by  their  climate  and  soil  to  endure."^ 

*Tt  is  well  known  that  none  of  the  German  nations  inhabit 

^  Tacitus,  Germany  C  4. 


88  EVOLUTION  OF  GOVERNMENTS  AiND  LAWS 

cities  or  even  admit  of  contiguous  settlements.  They  dwell 
scattered  and  separate  as  a  spring,  a  meadow  or  a  grove 
chance  to  invite  them.  Their  villages  are  laid  out,  not  Hke 
ours  in  rows  of  adjoining  buildings;  but  everyone  surround- 
ing his  house  with  a  vacant  space  either  by  way  of  security 
against  fire  or  through  ignorance  of  the  art  of  building.  For 
indeed  they  are  unacquainted  with  the  use  of  mortar  and 
tiles,  and  for  every  purpose  employ  rude  misshapen  timbers, 
fashioned  with  no  regard  to  pleasing  the  eye."  They  also 
dug  and  inhabited  caves.- 

*Tn  the  election  of  kings  they  have  regard  to  birth;  in  that 
of  generals  to  valor.  Their  kings  have  not  an  absolute  or  un- 
limited power;  and  their  generals  command  less  through  the 
force  of  authority  than  of  example.  If  they  are  daring,  ad- 
venturous, and  conspicuous  in  action,  they  procure  obedience 
from  the  admiration  they  inspire.  None  however  but  the 
priests  are  permitted  to  judge  offenders,  to  inflict  bonds  or 
stripes,  so  that  chastisement  appears,  not  as  an  act  of  mili- 
tary discipline,  but  as  the  instigation  of  the  god  whom  they 
suppose  present  with  warriors."^  They  were  great  gamblers. 
"On  affairs  of  small  moment  the  chiefs  consult;  on  those  of 
greater  importance  the  whole  community,  yet  with  this  cir- 
cumstance that  what  is  referred  to  the  decision  of  the  people, 
is  first  maturely  discussed  by  the  chiefs."* 

The  real  power  seems  at  all  times  to  have  been  in  the  gen- 
eral assembly  which  listened  to  orators  and  leaders  and  gave 
weight  to  the  counsels  of  such  as  it  chose  to  follow.  Prowess 
in  arms  was  always  the  main  source  of  distinction  and  war 
was  the  only  real  business  of  life.  Their  scanty  clothing  was 
made  largely  from  the  skins  of  wild  beasts  and  that  of  both 
men  and  women  was  fashioned  substantially  alike.  They 
were  extremely  hospitable  both  to  strangers  and  acquaint- 
ances. As  with  all  tribes  which  have  not  reached  the  com- 
mercial stage,  they  were  fond  of  giving  and  receiving 
presents.  In  agriculture  they  do  not  appear  to  have  pro- 
gressed  farther  than  the   Creeks,   Cherokees   or   Navajos  at 

'Id.C  i6.  'Id.  C  7.  *Jd.Cii. 


TRIBAL  ORGANIZATIONS   AND  SIMPLE  DESPOTISMS     89 

the  time  of  the  advent  of  the  white  man,  nor  in  architecture 
or  the  manufacture  of  clothing  and  household  utensils.  The 
description  so  far  given  of  the  Germans  in  the  time  of  Caesar 
and  Tacitus  would  apply  very  well  to  most  of  the  more  id- 
vanced  and  vigorous  Indian  tribes  at  the  time  of  their  first 
contact  with  the  whites.  Let  us  note  the  leading  points  of 
difference.  The  Germans  had  horses  and  cattle.  They  made 
beer  and  the  tribes  near  the  Rhine  also  used  wine.  They 
drank  to  excess.  They  used  iron  for  their  weapons.  They 
had  fixed  customs  with  reference  to  the  use  of  land  for  til- 
lage, but  which  hardly  amounted  to  an  assertion  of  title  even 
in  the  tribe.  Though  subject  to  the  vicissitudes  of  war  and 
sometimes  driven  from  place  to  place,  they  were  less  mi- 
gratory than  the  Indians.  They  were  more  cleanly  and  bet- 
ter fed,  having  the  advantages  of  milk,  cheese  and  the  flesh 
of  their  cattle.  The  most  marked  and  important  characteristic 
of  their  manners,  as  described  by  Tacitus  and  concurred  in 
by  all  the  early  writters,  is  the  purity  of  their  domestic  rela- 
tions, the  care  taken  in  rearing  their  young  and  preserving 
their  strength.  Chastity  is  seldom  characteristic  of  barbarous 
races,  but,  in  this  particular,  their  manners  were  in  striking 
contrast  with  those  then  prevailing  in  Rome.  In  the  develop- 
ment of  government  it  is  apparent  that  the  Germans  at  the 
time  of  our  first  introduction  to  them  were  in  substantially  the 
same  stage  as  the  Comanches,  Iroquois  and  other  more  ad- 
vanced tribes  of  the  north  at  the  time  of  the  discovery  of 
America. 

The  incipient  stages  of  government  everywhere  exhibit 
either  voluntary  association  for  a  common  purpose  or  the 
despotic  rule  of  the  strong.  In  the  former  case  the  authority 
terminates  with  the  necessity  calling  it  into  existence,  and  in 
the  latter  is  dependent  on  the  capacity  of  the  master  to  main- 
tain his  supremacy.  In  either  case  the  authority  exercised  is 
arbitrary  in  character  and  not  exercised  in  accordance  with 
any  established  rules. 

Among  the  American  Indians  the  organizations  were 
largely  voluntary  in  character.  In  Africa  despotic  tendencies 
predominate.     The  savage  tribes  of  Africa  are  not  less  given 


90  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

to  bloodshed  than  the  Indians,  but  possibly  a  little  less  in- 
clined to  inflict  cruel  tortures  on  enemies,  equally  violent  in 
temper,  but  rather  warmer  in  attachment,  equally  warlike, 
but  more  inclined  to  fight  in  the  open  and  on  even  terms. 

In  making  provisions  for  the  future,  the  African  tribes  are 
far  superior  to  the  Indians.  Even  the  most  fierce  and  inde- 
pendent tribes  cultivate  the  soil  to  good  purpose,  raising  large 
variety  of  vegetables  and  fruits  and  also  keep  cattle,  goats, 
fowls,  etc.  from  which  they  are  supplied  with  meat,  milk, 
butter,  eggs,  etc.  This  is  especially  true  of  the  stalwart  tribes 
and  nations  dwelling  in  the  great  lake  region  of  equatorial 
Africa.  The  Hottentots,  often  mentioned  as  of  a  very  low 
type,  tilled  the  soil  and  kept  their  herds.  In  manufactures 
workers  in  iron  are  found  by  travelers  in  the  heart  of  the 
continent. 

The  classification  often  made  of  the  stages  of  progress  of 
the  race,  based  on  the  nature  of  the  implements  used,  will  not 
hold  good  to  any  degree  whatever  as  a  classification  of  social 
development.  The  stone  age,  the  bronze  age,  the  iron  age, 
are  supposed  to  name  the  successive  stages  of  human  pro- 
gress, and  in  the  development  of  the  arts  doubtless  do,  but  in 
moral  and  social  development  they  indicate  nothing.  Nor 
are  the  designations  as  hunters,  shepherds  and  tillers  of  the 
soil  more  expressive  in  these  respects.  Along  the  great  Congo 
and  its  tributaries  are  to  be  found  many  tribes  which  have 
passed  all  these  stages,  having  their  flocks  and  herds,  their 
gardens,  and  fields  of  grain  and  fruits,  which  evidence  con- 
siderable skill  in  the  manufacture  of  household  implements, 
boats,  nets,  etc.  and  also  forge  iron,  from  which  they  make 
knives,  spears  and  other  weapons,  yet  morally  these  people  are 
among  the  most  depraved.  They  are  horrible  cannibals. 
They  are  thieves  and  robbers  as  well  as  murderers  at  all  times. 
Domestic  virtue  is  unknown.  Some  tribes  eat  the  old  people 
when  they  cease  to  be  capable  of  taking  care  of  themselves, 
if  we  may  believe  the  accounts  of  travelers.  With  a  great 
part  of  them  the  governmental  growth  does  not  extend  far- 
ther than  tribal  organization  with  no  substantial  power  in 
the  chiefs. 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     91 

Throughout  Africa  all  governments  seem  to  be  merely  an 
extension  of  the  relation  of  master  and  slave.  Though  pos- 
sessed of  strong  and  vigorous  bodies,  of  considerable  skill 
and  industry  in  providing  for  bodily  comforts,  of  courage 
as  well  as  cunning  in  war,  they  are  sadly  deficient  in  social, 
virtue.  From  the  small  weak  tribe,  struggling  for  existence 
against  its  enemies,  to  the  powerful  kingdoms  like  Uganda 
Unyoro,  Dahomey  and  Abyssinia,  all  authority  is  exercised 
unchecked  by  law.  Whatever  the  ruler  does  is  in  accordance 
with  his  individual  will.  Where  the  power  is  conceded  the 
mode  of  its  exercise  is  never  questioned.  When  the  king  of 
Uganda  sees  fit  to  depose  some  one  he  has  elevated  to  a  high 
position,  he  sends  a  favorite  with  a  sufficient  following  to 
''eat  him  up,"  which  means  that  the  obnoxious  one  is  killed 
and  his  wives,  slaves,  cattle  and  property  are  confiscated  and 
given  to  whomsoever  the  despot  wills.  The  practice  of  poly- 
gamy is  limited  only  by  poverty.  A  great  despot  like  the 
king  of  Dahomey  may  far  outclass  even  the  great  Solomon 
in  the  number  of  his  wives.  The  mode  of  administering  the 
greatest  of  their  governments  is  exceedingly  simple.  Where- 
ever  the  king  acts  directly  on  his  subjects,  he  rules  as  an 
absolute  despot,  enforcing  his  commands  summarily  by  seiz- 
ing property  or  person  and  taking  life  according  to  his  humor. 
Where  he  acts  through  subordinates  whom  he  cannot  oversee, 
the  same  despotic  power  and  discretion  is  exercised  by  the 
underling,  who  is  only  restrained  by  fear  of  displeasing  the 
king.  The  horrible  cruelty  so  often  exhibited  by  these  despots 
would  seem  such  an  intolerable  evil  that  anarchy  would  be 
preferable.  Yet,  comparing  the  conditions  of  the  people  in 
the  strong  states  with  those  of  the  scattered  tribes,  we  find 
that  even  such  a  despotism  exists  because  it  is  better  than  no 
government.  Scattered  villages,  unprotected  by  any  strong 
combination,  are  surprised  and  destroyed  by  some  marauding 
tribe.  Peace  and  plenty  for  a  generation  in  some  spot  may 
be  followed  by  partial  or  total  destruction  in  a  day.  This 
has  been  the  history  of  wild  tribes  everywhere  from  the 
earliest  times  of  which  we  have  any  account.  Tribe  against 
tribe  in  battle  to  the  death  from  generation  to  generation  has 


92      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

been  the  history  of  the  race.  The  hunters  of  America,  relying 
mainly  on  game  and  spontaneous  products,  were  kept  con- 
stantly reduced  in  numbers  by  fierce  wars  and  frequent  fam- 
ines. The  Africans  with  far  better  food  supplies  multiplied 
faster  and  developed  more  industry,  yet  bloody  and  devastat- 
ing wars  seem  to  have  been  not  less  frequent  with  them.  The 
effect  of  organized  government  everywhere  has  been  to  check 
tribal  wars,  to  encourage  industry,  and  to  increase  population. 
Though  a  large  country  be  at  war,  there  is  peace  to  all  save 
those  in  and  about  the  scene  of  the  struggle.  The  great  na- 
tion too  is  not  likely  to  be  more  frequently  at  war  than  the 
small  tribe  and  the  percentage  of  destruction  of  those  en- 
gaged generally  increases  in  inverse  ratio  to  numbers. 

The  African  race  throughout  all  ages  has  demonstrated  its 
ability  to  survive  and  even  increase  in  contact  with  the  other 
races.  Although  northern  Africa  has  been  subject  to  the 
influence  of  European  and  Asiatic  civilization  from  the  ear- 
liest times,  it  still  retains  its  distinctive  characteristics,  and 
the  negro  type  dwelling  south  of  the  great  desert  exhibits 
scarcely  a  trace  of  intermixture  with  the  whites.  Along  the 
eastern  coast  it  is  true  that  the  Arabs  have  intermixed  and 
modified  the  type  to  some  extent,  but  the  predominant  char- 
acteristics are  distinctly  African.  The  civilization  of  ancient 
Egypt  does  not  appear  to  have  ever  ascended  the  Nile  far 
beyond  the  desert,  but  it  is  probable  that  knowledge  of  agri- 
culture and  the  art  of  forging  iron  has  spread  over  Africa 
from  Egypt  and  Arabia. 

In  comparatively  recent  times  European  civilization  has 
taken  a  firm  hold  in  south  Africa  and  is  rapidly  extending 
toward  the  north.  To  what  extent  the  African  will  give  way 
and  vanish  before  the  Caucasian  in  the  Tropical  regions  re- 
mains to  be  seen.  In  America  it  has  been  demonstrated  that 
the  negro  multiplies  both  while  in  the  condition  of  a  slave 
to  the  white  and  as  a  free  man.  Everywhere  and  under  all 
conditions  he  exhibits  strong  attachment  to  his  offspring  and, 
while  lecherous,  is  still  warm  in  domestic  and  friendly  attach- 
ments, and  often  exceedingly  kindly  in  disposition  when  his 
passions   are   dormant.      In   physical   development   the   black 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS      93 

man  can  not  be  classed  as  clearly  inferior  to  the  white. 
Though  some  tribes  are  dwarfed  and  illformed,  the  great 
majority  are  equal  in  size  and  strength  to  the  best  developed 
Caucasians.  Why  they  should  have  made  so  little  progress 
in  constructing  governments  and  enacting  laws  is  an  inter- 
esting subject  of  inquiry.  Except  where  brought  in  direct 
contact  with  some  superior  race,  they  seem  never  to  have 
learned  any  system  of  writing  and,  as  we  have  seen,  their 
only  idea  of  government  has  been  that  of  arbitrary  personal 
authority,  unrestrained  by  law  or  settled  custom.  Though  in 
the  region  of  the  great  lakes  the  natives  cultivate  the  land, 
often  to  a  high  degree,  Livingston,  Stanley  and  other  travelers 
fail  to  inform  us  of  any  system  of  laws  governing  land  ten- 
ures. The  chief  or  king  may  decide  disputes  between  con- 
flicting claimants,  but  he  does  so  according  to  his  own  caprice 
rather  than  by  any  settled  law.  The  marvelous  fertility  of 
the  soil,  the  extent  of  unoccupied  land  and  the  frequent  de- 
struction of  communities  by  war,  seem  to  afford  a  continual 
outlet  for  any  increase  of  numbers.  It  may  be  that  a  close 
study  by  a  careful  observer  would  disclose  more  in  the  nature 
of  settled  principles  of  government  among  them  than  the 
writings  of  hasty  travelers  record,  but  it  seems  clear  that 
their  conceptions  of  rules  of  property  and  laws  governing  the 
conduct  of  individuals  toward  each  other,  except  where  modi- 
fied by  contact  with  other  races,  are  not  in  advance  if  really 
equal  to  those  of  the  American  Indians. 

Intermediate  the  prevailing  tribal  organizations  of  America 
and  the  highly  developed  governmental  systems  of  the  Mexi- 
cans and  Peruvians,  were  many  nations  advanced  somewhat 
above  the  common  level  of  the  rude  tribes.  The  Comanches 
presented  an  advanced  type  of  the  Indians  who  occupied  most 
of  the  North  American  contient,  well  formed  and  vigorous  in 
physique,  brave  and  warlike,  hospitable  in  peace,  fierce  and 
cruel  in  war.  They  were  nomads.  They  held  public  councils 
at  regular  intervals  to  discuss  public  matters,  make  laws  and 
punish  crime.  The  majority  ruled.  Laws  were  published 
by  a  crier.  Justice  was  administered  by  a  council  of  the 
tribe  whose  sentence  was  carried  into  execution  by  the  chiefs. 


94      EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

A  system  of  signals  by  fire  and  smoke  was  used  to  call  their 
forces  together  in  case  of  need.  In  war  they  were  formid- 
able and  could  bring  to  the  field  a  force  of  several  thousand. 
Crimes  were  punished  rigorously  and  toward  each  other  they 
were  peaceable.  Their  treatment  of  women  was  in  accordance 
with  the  usual  customs  of  savages.  Wives  were  bought  and 
made  drudges  for  their  husbands  and  polygamy  prevailed. 
No  attention  was  paid  to  agriculture,  but  the  vast  herds  of 
buffaloes  on  the  plains  afforded  an  ample  supply  of  meat. 
The  Navajos,  Mojaves  and  Yumas  were  more  peaceful  and 
industrious  in  their  habits.  They  cultivated  the  soil  and 
raised  ^corn,  wheat,  beans,  pumpkins,  melons  and  other  vege- 
tables. The  Mojaves  built  substantial  dwellings  of  very  pecu- 
liar construction,  and  cylindrical  granaries.  Some  tribes  en- 
tered their  dwellings  from  the  top,  having  neither  doors  nor 
windows.  The  Navajos  were  shepherds,  and  their  blankets 
have  become  noted.  In  the  far  northwest  the  natives  showed 
a  tendency  to  more  settled  modes  of  life  and  to  class  distinc- 
tions. The  Nootkas,  Chinnooks  and  Thlinkeets  built  large  and 
substantial  dwellings  of  wood,  sufficient  in  size  for  many 
families  occupying  separate  apartments.  Property  in  these 
homes  was  recognized  as  vested  in  those  who  combined  to 
build  them.  The  villages  of  the  Nootkas  were  regularly  laid 
out.  Something  like  hereditary  rank  was  recognized,  though 
the  head  chief  had  little  real  power  except  over  his  slaves. 
A  sort  of  nobility  existed,  based  on  individual  distinction  in 
war  or  social  liberality.  Among  the  Thlinkeets  and  Haidahs 
the  power  of  the  chiefs  is  said  to  have  been  despotic  at  times. 
All  the  Northwestern  tribes  held  slaves  and  had  notions  as  to 
property  rights.  Though  instances  may  be  cited  of  arbitrary 
power  exercised  by  Indian  chiefs,  the  prevailing  genius  was 
that  of  liberty  and  equality.  Personal  prowess  was  the  source 
of  distinction,  and  recognized  individual  merit  the  commis- 
sion of  leadership.  The  cunning  of  the  medicine  man,  work- 
ing on  the  ignorance  and  superstition  of  the  members  of  the 
tribe,  gave  him  influence,  but  little  real  authority.  No  priestly 
class. appears  to  have  developed  except  in  the  advanced  states 
of  Mexico  and  Peru. 


TRIBAL  ORGANIZATIONS  AND  SIMPLE  DESPOTISMS     95 

Authorities 

Schoolcraft:     Indian  Tribes  of  the  U.  S. 

Tacitus :     Germany. 

David  Livingston :  Travels  and  Researches  in  Africa,  Last 
Journal. 

H.  M.  Stanley:  Through  the  Dark  Continent,  In  Darkest 
Africa,  Through  the  Great  Forest. 

Elisee  Reclus :     Africa. 

Hugh  Murray:    The  African  Continent. 

Joseph  Thomson:     Through  Masai  Land. 

Caleb  Atwater:     Indians  of  the  Northwest. 

Stephen  Powers:     Tribes  of  California. 

H.  H.  Bancroft:    Native  races  of  the  Pacific  States. 

John  Thos.  Short:     The  North  Americans  of  Antiquity. 

S.  G.  Drake:    Aboriginal  Races  of  North  America. 

S.  G.  Goodrich:     History  of  the  Indians  of  North  America. 

Henry  Alexander:  New  Light  in  Early  History  of  North- 
west. 

Louis  Hennepin. 


CHAPTER  III 


Pacific  Islands 


The  social  state  of  the  natives  of  the  Pacific  Islands  pre- 
sents a  most  curious  study.  Their  character  as  depicted  by 
the-  early  discoverers  is  contradictory.  This  however  is  largely 
true  of  all  savages.  At  times  they  appear  as  gentle,  kindly, 
hospitable  and  peaceful,  at  other  times  as  fierce,  treacherous, 
vicious  and  murderous.  That  they  were  mostly  cannibals  is 
beyond  doubt,  yet  they  generally  lived  under  conditions  af- 
fording abundant  and  varied  food  supplies.  They  tilled  the 
soil,  raised  pigs  and  fowls  and  in  most  'parts  recognized  in- 
dividual ownership  of  the  soil.  Though  scattered  over  numer- 
ous islands  distant  thousands  of  miles  from  each  other,  the 
people  appear  to  be  of  one  race  and  their  language  and  cus- 
toms are  surprisingly  similar  from  Hawaii  to  New  Zealand. 
The  ignorance  of  Europeans  of  their  ideas  and  superstitious 
observances  of  the  laws  of  taboo  have  doubtless  led  to  many 
exhibitions  of  fierceness  by  the  natives,  the  reason  of  which 
has  not  been  understood  by  Europeans.  The  violation  of  a 
taboo  by  taking  a  sacred  thing  or  invading  a  sacred  place 
aroused  the  otherwise  peaceful  islander  to  murderous  frenzy. 
Kingly  authority,  class  distinctions  and  slavery  appear  to  have 
been  general  in  their  system,  which  is  spoken  of  by  some  as 
based  on  castes. 

In  some  respects  they  are,  according  to  European  ideas,  to 
be  classed  as  among  the  lowest  types  of  mankind.  They  went 
naked  and  ate  human  flesh.  Yet  they  recognized  govern- 
mental authority  and  rights  of  property.  These  were  upheld 
by  intricate  religious  or  superstitious  observances  of  taboos, 
which  made  sacred  to  the  use  of  the  king  all  things  which  he 
touched  and,  lest  the  property  of  the  subject  should  become  so, 
forbade  him  to  use  anything  but  his  own.  With  them,  as 
with  all  savages  in  moderate  climates,  the  body  was  disfigured 

96 


PACIFIC  ISLANDS  97 

for  ornament,  and  the  idea  of  making  clothing  for  comfort 
does  not  appear  to  have  suggested  itself.  Owing  to  the  small 
size  of  the  islands  and  the  distance  of  one  from  another,  the 
authority  of  a  king  seldom  extended  far  and  the  number  of 
people  under  one  soereign  was  necessarily  small  in  compari- 
son with  even  the  larger  African  despotisms.  Still  it  was 
not  uncommon  for  a  king  to  rule  a  whole  group  of  islands. 
New  Zealand  affords  a  comparatively  wide  field,  but  does 
not  seem  to  have  developed  a  higher  type  of  government. 
Numerous  chiefs  having  little  real  power  led  the  people  in 
their  wars.  Having  no  money  there  were  no  taxes,  but  there 
were  slaves.  Having  no  knowledge  of  the  use  of  letters  they 
had  no  written  laws,  but  their  customs  and  superstitions, 
taught  orally,  were  quite  complicated.  There  was  little  basis 
for  commerce,  as  the  products  of  all  the  neighboring  islands 
were  substantially  alike,  and  the  fish  of  the  sea  were  equally 
accessible  to  all.  Manufacturing  was  mostly  limited  to  build- 
ing huts,  boats  and  making  weapons  and  fishing  tackle.  The 
similarity  of  the  people  and  their  customs  on  so  many  islands, 
so  remote  from  each  other,  is  very  striking.  While  on  the 
continents  tribes  differing  radically  in  language,  customs, 
character  and  appearance  are  often  found  in  close  proximity 
to  each  other,  the  people  of  Hawaii  and  New  Zealand,  though 
separated  by  sixty  degrees  of  latitude,  seem  clearly  of  the 
same  race. 

As  with  nearly  all  the  lower  races  the  women  bore  th'e  heav- 
iest burdens.  The  taboo  prohibited  her  from  partaking  of  the 
flesh  of  pigs  and  fowls  and  from  feasts  of  human  flesh.  En- 
forced by  superstitious  fears  as  well  as  physical  force,  the 
taboo  operated  as  a  powerful  aid  to  the  authority  of  the  ruler 
and  exercised  a  wide  influence  on  the  conduct  of  the  people. 
It  was  in  effect  a  most  peculiar  system  of  laws,  having  little 
similarity  to  anything  found  in  continental  regions.  The 
taboo  of  the  king  or  chief  rendered  not  only  his  person  and 
property  sacred  but  even  his  name.  This  was  a  recognition 
of  his  divine  right  far  surpassing  that  of  European  kings. 
The  idea  of  the  sanctity  of  priests,  churches  and  sacred  places 
is  similar  only  in  a  slight  degree  to  the  idea  of  absolute  ex- 


98  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

clusiveness  imposed  by  the  taboo.  As  applied  to  the  matri- 
monial relation  the  wife  was  taboo  to  all  but  her  husband. 
For  savages  this  was  quite  a  close  approximation  to  the  idea 
of  the  sacredness  of  the  marriage  relation. 


CHAPTER  IV 

Mexico 

The  governmental  systems  of  the  inhabitants  of  the  Mexi- 
can plateau  differed,  not  merely  in  degree  of  development,  but 
radically  in  character,  from  the  tribal  organizations  and  con- 
federacies of  the  wild  races  of  the  north.  The  Tlascalans 
seem  to  have  retained  more  of  the  traits  and  characteristics 
prevailing  among  northern  tribes  than  their  more  numerous 
neighbors.  Prescott  speaks  of  Tlascala  as  a  republic,  but,  if 
such,  it  was  of  a  most  peculiar  sort.  The  principal  authority 
was  vested  in  four  chiefs,  each  of  whom  had  his  separate 
district,  parcelled  out  among  sub-chiefs,  who  held  by  a  tenure 
similar  to  that  of  the  feudatory  vassals  of  Europe,  and  were 
hound  to  render  military  service  to  their  chiefs,  as  well  as  to 
supply  their  tables.  The  affairs  of  the  general  government 
were  settled  by  a  council  consisting  of  the  four  principal  chiefs 
and  the  inferior  nobles.  The  domains  of  the  sub-chiefs  were 
parcelled  out  among  their  retainers,  who  were  bound  to  render 
them  like  service  as  that  they  gave  their  superiors.  The  bond 
of  union  appears  to  have  been  very  firm  and  was  well  main- 
tained. In  the  city,  order  was  preserved  by  a  municipal  police. 
Military  prowess  was  the  source  of  greatest  distinction,  and 
a  rank  corresponding  with  knighthood  was  conferred  on  those 
exhibiting  especial  merit.  The  lowest  order  of  people  appear 
to  have  been  held  in  a  condition  not  unlike  the  European 
peasants  of  feudal  times. 

The  darkest  aspect  of  Aztec  life  was  the  bloody  and  gloomy 
religion,  the  cruel  rites  of  which  constantly  characterized  the 
deity  as  savage,  remorseless  and  devoid  of  love  or  pity.  The 
custom  of  eating  human  flesh  is  only  reconcilable  with  the 
otherwise  high  state  of  civilization  attained,  as  an  ordinance 
of  their  horrible  superstition.  Their  war  god,  like  the  war 
gods  of  all  people  in  all  times,  taught  lessons  of  cruelty  and 
forbade  all  exhibitions  of  pity  or  kindness  toward  enemies. 

99 


100  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  government  of  the  Aztecs  was  an  elective  monarchy. 
The  sovereign  was  selected  from  the  brothers  of  the  deceased 
monarch  or  in  default  of  them  from  his  nephews.  The  choice 
was  made  by  four  of  the  principal  nobles,  designated  for  that 
purpose  by  their  own  order  in  the  preceding  reign.  This  sys- 
tem appears  far  better  calculated  to  place  a  meritorious  prince 
on  the  throne  than  the  prevailing  system  in  modern  Europe, 
which  places  the  crown  arbitrarily  on  the  eldest  son  of  the 
deceased  monarch  without  regard  to  merit.  It  also  avoided 
the  necessity  for  a  protector  ruling  in  the  name  of  an  infant 
king,  for  among  those  eligible  there  would  seldom  fail  to  be 
an  adult.  The  electors,  taken  from  the  leading  men  of  the 
nation,  were  familiar  with  the  character  of  all  the  princes  and 
in  a  position  to  make  the  best  possible  selection.  This  system 
is  doubtless  due  to  the  democratic  ideas  which  prevailed  among 
the  aborigines  of  America,  and  to  their  settled  custom  of 
awarding  power  and  leadership  only  to  such  as  exhibited 
capacity  for  it.  The  results  fully  demonstrated  its  wisdom, 
for  their  kings  were  men  of  conspicuous  ability.  The  king 
was  not  only  the  chief  executive  and  commander-in-chief  of 
the  army,  exercising  direct  authority  over  the  principal  nobles, 
who  were  required  to  render  him  personal  service  at  his 
palace  and  in  his  body  guard,  but  he  also  exercised  the  legis- 
lative function.  This  he  did  in  a  manner  far  in  advance  of 
the  methods  of  African  and  many  Asiatic  despotisms.  The 
laws  promulgated  were  registered  and  exhibited  to  the  people 
in  picture  writings.  They  were  of  course  adapted  to  the  con- 
ditions of  the  people,  and  show  evidences  at  the  same  time  of 
enlightened  policy  and  savage  cruelty.  Murder  and  adultery 
were  punished  with  death.  Thieves  were  either  enslaved  or 
put  to  death.  Among  capital  offences  were  numbered  re- 
moving the  boundaries  of  anothers  land,  altering  the  estab- 
lished measures,  and  misconduct  of  guardians  in  dealing  with 
the  property  of  their  wards.  Prodigals  and  drunkards  were 
severely  punished.  The  marriage  relation  was  clearly  com- 
prehended and  its  sacredness  recognized  and  protected.  Di- 
vorces could  only  be  obtained  by  decree  of  a  court  having 
jurisdiction  solely  of  domestic  affairs,  after  a  full  and  patient 
hearing  of  the  parties. 


MEXICO  loi 

Slavery  existed  among  them,  but  in  the  least  objectionable 
form  in  which  it  has  existed  anywhere.  Its  subjects  were 
prisoners  of  war,  who  however  were  almost  invariably  sacri- 
ficed rather  than  enslaved,  criminals,  public  debtors  and  poor 
persons  who  sold  themselves  or  their  children.  The  services 
to  be  exacted  were  limited  with  precision.  The  slave  was 
allowed  to  have  his  own  family  and  property,  even  other 
slaves.  His  children  were  free.  There  was  no  such  thing  as 
hereditary  slavery,  and  sales  of  slaves  were  rare.  The  sepa- 
ration of  the  judicial  power  from  the  executive  and  legislative 
evinces  a  comprehension  of  the  principles  of  good  government 
hardly  to  be  looked  for.  Over  each  of  the  principal  cities  and 
its  tributary  country  there  was  a  supreme  judge,  appointed  by 
the  king,  but  holding  his  office  for  life.  He  had  jurisdiction 
in  both  civil  and  criminal  causes.  There  was  an  inferior 
court  in  each  province,  composed  of  three  members,  having 
concurrent  jurisdiction  in  civil  causes.  In  criminal  cases  an 
appeal  lay  to  the  supreme  judge.  Besides  these  there  were 
inferior  magistrates  throughout  the  country,  chosen  by  the 
people  of  the  districts  and  having  jurisdiction  in  minor  causes. 
There  were  also  inferior  censors,  elected  by  the  people,  whose 
duty  it  was  to  watch  over  a  certain  number  of  families  and 
report  any  infraction  of  the  laws.  In  Tezcuco  a  general  meet- 
ing of  all  the  judges  throughout  that  kingdom,  presided  -over 
by  the  king,  was  held  every  eighty  days  at  the  capital  for  the 
determination  of  causes  of  first  importance.  This  general 
court  also  acted  as  a  grand  council  of  state.  For  a  judge  to 
receive  a  bribe  was  punishable  with  death.  The  judges  were 
supported  from  a  part  of  the  produce  of  the  crown  lands  set 
apart  for  that  purpose.  They  wore  official  robes  and  worked 
full  days.  Officers  corresponding  to  sheriffs  and  bailiffs  were 
in  attendance  to  preserve  order,  summon  parties  and  wit- 
nesses. Lawyers  do  not  appear  to  have  been  in  favor  and 
are  not  mentioned  in  connection  with  the  proceedings  of  the 
courts.  In  criminal  causes  the  accused  was  allowed  to  testify. 
The  testimony  and  proceedings  were  taken  down  by  the  clerk 
in  hieroglyphical  painting  and  delivered  to  the  court. 

In  the  art  of  levying  taxes,  as  in  all  other  branches  of  the 


102  EVOLUTiO'lN   OF  GOVERNMENTS  AND  "LAWS 

science  of  government,  the  Aztecs  were  far  in  advance  of  all 
savages.  Besides  the  revenue  from  crown  lands,  services  in 
building  the  kings  palaces  and  buildings  were  exacted  from 
laborers  dwelling  in  the  adjacent  territory.  Tribute  in  kind 
was  required  from  farmers  and  manufacturers,  and  the  table 
of  the  monarch  and  his  retainers  was  abundantly  supplied  by 
his  subjects.  His  granaries  were  filled  with  corn  and  his 
warehouses  with  cotton  cloths  and  feather  robes,  arms,  armor 
and  utensils  collected  by  his  tax  gathers  from  all  parts  of  the 
empire.  In  fact  every  variety  of  product  for  use  or  ornament 
was  collected  for  the  king. 

Any  description  of  the  Mexican  government  which  ignores 
the  priesthood  leaves  out  the  most  characteristic  part.  The 
influence  of  the  priests  on  the  policy,  as  well  as  on  the  man- 
ners and  morals  of  the  people,  was  of  first  importance.  The 
chief  priests  were  not  only  at  the  head  of  a  vast  religious 
establishment,  numbering  thousands  of  inferior  members,  but 
at  the  same  time  superintended  the  educational  system  of  the 
empire  and  exercised  a  most  potent  influence  on  the  policy  of 
the  king.  To  supply  the  thousands  of  human  victims,  who 
were  sacrificed  during  each  year  to  their  cruel  gods,  it  was 
necessary  to  wage  war  and  bring  in  captives.  At  the  behest 
of  the  priests  the  monarch  was  often  influenced  to  put  the 
armies  into  the  field.  Thus  the  empire  was  extended,  at  the 
expense  of  neighboring  tribes,  and  victims  were  supplied  for 
the  sacrificial  stone. 

At  the  head  of  the  religious  order  were  two  priests  chosen 
by  the  king  and  principal  nobles.  Below  them  were  others  of 
various  ranks  and  functions  in  all  the  towns  of  the  empire, 
forming  a  very  numerous  body.  Their  teocallis  or  temples,  in 
great  number  and  many  of  them  of  vast  size,  were  thickly 
scattered  about  the  cities.  On  the  top  of  the  terraced  mounds 
of  earth,  on  which  the  temple  proper  stood,  the  victim  was 
bound  on  the  sacrificial  stone,  and  in  sight  of  the  people  far 
and  near  the  priest  cut  his  breast  open  with  a  sharp  stone, 
tore  out  his  throbbing  heart,  held  it  bleeding  to  the  sun  and 
then  cast  it  at  the  feet  of  the  idol.  The  body  of  the  victim 
was  then  given  to  his  captor  to  be  served  at  a  great  feast 
given  to  his  friends. 


MEXICO  103 

In  some  respects  the  religious  societies  were  similar  to 
those  of  the  Catholic  Church.  They  held  and  tilled  great 
bodies  of  land,  the  surplus  products  of  which  over  what  was 
consumed  by  them,  were  distributed  to  the  poor.  The  priests 
heard  the  confessions  of  the  people  and  granted  absolution 
for  their  misdeeds.  More  important,  however,  than  all  this, 
the  religious  houses  were  the  repositories  of  learning.  To 
them  was  due  the  credit  of  developing  the  art  of  picture  writ- 
ing, and  they  took  charge  of  the  instruction  of  the  young. 
By  this  means  their  doctrines  and  superstitions  were  given  a 
strong  and  lasting  hold  on  the  people,  especially  the  nobility, 
whose  children  were  trained  by  them. 

In  all  ages  and  among  all  people  public  ceremonies  have 
played  an  important  part  in  public  affairs  and  exercised  a 
powerful  influence  on  society.  Among  the  savage  tribes  of 
America,  feasts,  dances  and  formal  councils  have  afforded 
the  occasion  and  opportunity  for  gathering  the  sentiment  of 
the  tribe  on  public  questions,  for  arousing  their  passions  and 
starting  them  on  the  war  path.  In  imperial  Rome  the  culture 
and  innate  savagery  of  the  people  were  exhibited  at  the  circus. 
Nero  read  his  verses  above  the  arena  whose  sands  soaked  up 
the  blood  of  martyrs,  gladiators  and  wild  beasts.  The  Mexi- 
cans exhibited  no  less  strong  contrasts  in  their  public  cere- 
monies. Beautiful  flowers  in  tropical  profusion,  emblems  of 
peace  and  innocence,  adorned  the  processions  which  bore  vic- 
tims to  the  altars  of  the  gods.  Innocent  babes,  gaily  decked 
with  beautiful  robes  and  roses,  were  carried  to  their  doom 
by  chanting  priests.  At  the  same  time  that  observance  of 
these  most  cruel  and  savage  rites  was  inculcated,  the  priests 
taught  lessons  of  private  virtue  and  integrity,  obedience  to 
law,  industry  and  thrift.  It  may  be  remarked  that  even  their 
treatment  of  prisoners  was  an  improvement  on  that  prevailing 
among  the  savage  tribes  with  which  they  were  surrounded. 
The  act  of  cutting  open  the  breast  and  tearing  out  the  heart 
was  quickly  and  dexterously  performed,  and  the  suffering  of 
the  victim  soon  ended.  Let  it  not  be  forgotten  also,  while 
we  are  condemning  the  Aztecs  for  their  barbarity,  that,  at 
the  same  time,  the  most  Christian  nations  of  Europe  were 


I04  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

breaking  heretics  on  the  rack,  walHng  them  up  aHve  in  tombs 
and  applying  all  the  tortures  which  fiendish  ingenuity  could 
devise,  for  the  purpose  of  preserving  intact  the  authority  of 
the  priests  and  teachers  professing  to  be  followers  of  the 
meek  and  lowly  Nazarene,  who  came  to  bring  peace  on  earth 
and  good  will  to  men.  Let  us  remember  that  our  Puritan 
ancestors,  even  at  a  later  day,  hung  and  burned  people  guilty 
only  of  the  imaginary  crime  of  witchcraft.  Let  us  bear  in 
mind  how  heads  were  lopped  off  in  England  and  elsewhere 
for  even  dreaming  the  death  of  the  king.  Though  so  ab- 
horrent to  our  ideas  and  feelings,  their  cannibalism  seems  to 
have  been  prompted  by  fanaticism  rather  than  foul  appetite. 

The  number  of  festivals  observed  by  the  Mexicans  was 
very  great.  Each  god  received  his  due  honors,  and  all  re- 
ligious ceremonies  were  conducted  by  the  priests  and  ob- 
served by  the  people  with  order  and  decorum.  It  is  curious  to 
note  that  under  the  more  ancient  civilization  of  the  Toltecs 
human  sacrifice  was  unknown.  Not  until  the  ascendency  of 
the  Aztecs  had  the  Inquisition  begun  its  bloody  career  on 
the  European  continent. 

The  domestic  regulations  of  the  Aztecs  were  neither  of  the 
best  nor  of  the  worst.  Polygamy  was  practiced  to  some  ex- 
tent, especially  among  the  rich,  but  was  not  general.  Slavery 
as  we  have  seen  existed  but  in  a  mild  form.  On  the  other 
hand  marriages  were  celebrated  with  much  ceremony,  con- 
tinency  on  the  part  of  both  sexes  was  -strongly  inculcated,  and 
adultery  severely  punished.  Though  children  were  strictly 
ruled,  especially  while  under  instruction,  their  parents  re- 
garded them  with  affection.  Wives  were  not  slaves  to  their 
husbands,  but  were  their  companions  and  shared  with  them 
at  feasts  and  entertainments.  Divorce  implied  disgrace  and 
could  only  be  obtained  through  a  court  for  cause.  Guardians 
were  appointed  for  orphans  and  were  held  to  the  strictest 
account  in  the  management  of  their  estates.  The  principal 
part  of  the  labor  of  the  fields  was  performed  by  the  men. 
Only  the  lighter  kinds  of  work  were  done  by  the  women,  and 
it  is  said  that  in  the  division  of  labor  the  weaker  sex  was 
quite  as  tenderly  regarded  as  in  most  parts  of  Europe  today. 


MEXICO  105 

The  educational  and  material  progress  made  by  the  Mexi- 
cans was  such  as  might  naturally  be  expected  from  their 
circumstances.  Considerable  skill  was  developed  both  in  agri- 
culture and  in  manufactures,  but  trade  hardly  passed  the  stage 
of  local  barter.  Regular  markets  were  held  in  the  cities  on 
every  fifth  day,  which  were  attended  by  a  great  concourse  of 
people.  Different  quarters  were  assigned  specially  to  each 
kind  of  commodities  and,  where  barter  failed,  a  kind  of  cur- 
rency consisting  of  quills  of  gold  dust,  bits  of  T  shaped  tin 
and  bags  of  cacao  of  a  specified  number  of  grains  was  used. 
The  precious  metals  as  well  as  tin  and  copper  were  wrought 
with  much  skill  into  useful  and  ornamental  vessels  and  im- 
plements of  various  kinds.  The  fibre  of  the  maguey  and 
cotton  furnished  material  for  the  weavers,  of  which  they 
made  good  use,  and  the  richest  robes  were  made  with  feathers. 
Though  their  architecture  was  not  of  high  order,  the  teocallis 
and  palaces  were  of  great  size,  and  the  latter  of  considerable 
pretensions  for  comfort.  Post  routes  were  established 
throughout  the  empire,  with  stations  at  short  intervals,  and 
by  means  of  trained  messengers  dispatches  were  forwarded 
with  remarkable  speed.  Picture  writing  had  reached  a  stage 
of  development  that  furnished  means  of  communication  by 
writing  and  orders  from  the  king  were  so  transmitted  by  his 
messengers. 

The  most  marked  and  surprising  evidence  of  scientific 
progress  was  in  the  correctness  of  their  calendar,  in  which 
the  length  of  the  year  was  set  down  with  a  very  close  ap- 
proximation to  absolute  accuracy,  and  the  equinoxes  and 
solstices  were  correctly  noted. 

Domestic  animals  the  Aztecs  had  not.  They  were  therefore 
total  strangers  to  the  shepherd  state.  The  buffaloes  of  the 
prairies  were  never  reduced  to  subjugation  by  them.  The 
care  with  which  they  made  provision  for  future  wants  in 
well  stored  granaries  and  warehouses  is  in  marked  contrast 
to  the  improvidence  of  northern  tribes.  In  their  pulque,  made 
from  the  sap  of  the  maguey,  they  had  an  intoxicating  drink 
of  which  they  were  excessively  fond,  but  of  which  only  the 
old  people  were  allowed  to  partake  freely.     The  diversity  of 


io6  EVO/LUTION  OF  GOVERNMENTS  AND  LAWS 

climate  due  to  difference  in  elevation  afforded  a  most  diversi- 
fied and  prolific  flora  which  they  studied  with  care.  Their 
gardens  afforded  both  useful  and  beautiful  plants  in  the  great- 
est variety. 

Authorities 

Prescott:    Conquest  of  Mexico. 
Encyclopaedia  Britannica. 


CHAPTER  V 


Peru 


The  governmental  system  of  Peru,  as  it  existed  prior  to  the 
Spanish  conquest,  is  unique  in  some  of  its  most  essential  fea- 
tures and  worthy  of  the  most  careful  study.  For  information 
with  reference  to  it  we  have  to  look  to  the  accounts  of  its 
fierce  and  fanatical  conquerors,  who  probably  failed  to  fully 
and  clearly  comprehend  the  spirit  of  it. 

The  native  tribes  of  South  America  were  generally  as  defi- 
cient in  organization  as  those  of  North  America.  The  Arau- 
canians,  inhabiting  the  country  to  the  south  of  Peru,  exhibited 
some  capacity  for  concerted  action  and  were  a  bold  and  vigor- 
ous race,  but  their  institutions  bore  no  resemblance  to  those 
of  Peru.  Why  a  great  and  strong  government,  so  peculiar  in 
form,  should  have  developed  amidst  such  surroundings,  ap- 
parently with  nothing  to  suggest  the  well  digested  policy  pur- 
sued by  the  Incas  from  generation  to  generation,  is  an 
unsolved  riddle.  The  tradition  of  Manco  Capac  and  Mama 
Oello  Huaco,  children  of  the  Sun,  appearing  near  Lake  Titi- 
caca  and  proceeding  to  gather  the  fierce,  warlike  and  cannibal 
tribes  into  communities  and  teach  them  the  arts  of  peace  and 
the  duty  and  blessings  of  mutual  helpfulness,  is  as  charming 
as  anything  to  be  found  in  Greek  Mythology,  yet  fails  to  ac- 
count for  the  origin  of  the  Empire,  unless  we  are  ready  to 
concede,  as  did  the  Peruvian  people,  the  divine  origin  of  their 
rulers.  In  the  claim  of  a  divine  origin  for  kings  there  is 
nothing  new  or  uncommon. 

The  power  of  hereditary  despots  is  universally  exercised 
under  claim  of  a  divine  commission.  Generally  this  claim 
has  been  fortified  by  an  organized  priesthood,  sedulously 
teaching  the  people  to  view  the  king  with  awe  and  reverence 
as  the  representative  on  earth  of  the  Deity.  Inferior  officers 
civil  and  military  have,  through  various  motives,  also  instilled 

107 


io8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

into  the  minds  of  the  multitude  an  idea  of  the  sacredness  of 
the  prince  and  the  divinity  of  his  commission  to  rule  over 
men.  The  government  of  Peru  was  a  monarchy,  hereditary 
in  the  male  line.  The  Inca  stood  at  the  head  of  both  the 
civil  and  religious  orders.  He  married  a  sister  of  the  full 
blood  for  his  queen,  whose  issue  succeeded  to  the  throne,  and 
also  had  numerous  other  wives.  All  descendants  of  the  Incas 
constituted  the  highest  order  of  nobility,  and  from  them  all 
the  great  offices  of  state  were  filled.  From  a  small  territory 
in  the  vicinity  of  Cuzco  the  dominion  of  the  Incas  was  grad- 
ually extended,  by  peaceful  methods  wherever  possible,  but 
by  war  when  necessary,  over  adjacent  tribes.  The  conquered 
people  were  never  exterminated,  but  became  subject  to  the 
same  regulations  as  other  subjects  and  received  like  protection. 
Their  caciques  constituted  an  order  of  nobility,  inferior  to 
that  of  the  blood  of  the  Incas,  and  exercised  some  authority 
over  the  tribes  to  which  they  belonged.  They  were  required 
to  visit  the  capital  and  allow  their  sons  to  be  educated  there, 
so  that  in  the  succeeding  generations  they  became  imbued 
with  the  principles  of  the  government.  The  members  of  the 
family  of  the  Inca  are  said  to  have  been  of  a  superior  type 
to  the  mass  of  subjects.  Whether  this  was  due  merely  to 
difference  in  mode  of  life  and  opportunities  for  development 
or  to  a  diversity  of  original  stock  cannot  be  very  satisfactorily 
answered.  Over  the  religious  order  stood  a  high  priest  or 
Villac  Vmu  as  he  was  called,  inferior  only  in  dignity  to  the 
Inca,  by  whom  he  was  appointed  from  his  near  kindred,  to 
hold  the  office  for  life.  The  Villac  Vmu  appointed  to  all  the 
inferior  stations  of  the  order.  Those  officiating  about  the 
temple  of  the  Sun  at  Cuzco  were  exclusively  of  the  blood  of 
the  Incas,  as  were  also  the  high  priests  in  each  district  of  the 
empire,  but  ministers  in  provincial  temples  were  selected  from 
the  families  of  the  native  curacas.  All  members  of  the  Inca 
nobility  were  looked  up  to  with  veneration  as  belonging  to 
the  holy  order.  The  functions  of  the  priestly  order  related 
exclusively  to  service  in  the  temples  and  in  connection  with 
the  very  elaborate  feasts,  festivals  and  pubHc  worship.  The 
Sun  was  the  principal  deity  worshipped,  with  a  small  share 


PERU  109 

of  devotion  for  the  Moon,  his  sister  wife,  the  stars,  the  rain- 
how,  thunder  and  hghtning.  But  the  Incas,  hke  the  ancient 
Greeks  and  Romans,  were  exceedingly  tolerant  of  other  gods, 
and  also  had  their  Pantheon  in  which  were  set  up  the  images 
of  the  deities  of  all  the  conquered  tribes  of  the  empire.  Fol- 
lowing the  submission  of  a  tribe  worshipping  a  peculiar  god 
or  idol,  the  image  was  at  once  promoted  and  took  its  place 
among  the  gods  at  Cuzco,  where  it  received  appropriate  hom- 
age at  the  expense  of  the  state.  Public  sacrifices  were  made 
at  the  great  festivals,  and  it  is  said  at  times  in  addition  to 
animals,  grain,  flowers  and  sweet  scented  gums,  children  and 
maidens  were  also  sometimes  offered  on  the  altar.  It  is  cer- 
tain, however,  that  human  sacrifices  were  rare,  and  it  is  even 
disputed  by  some  that  any  such  were  made.  The  "House  of 
the  Virgins  of  the  Sun"  at  Cuzco  was  filled  with  fifteen  hun- 
dred vestal  virgins  of  the  blood  of  the  Inca,  who  kept  the 
sacred  fires,  started  at  the  annual  feast  of  the  Rayini,  and 
wove  from  the  hair  of  the  vicuna  the  hangings  for  the  temples 
and  the  clothing  for  the  household  of  the  Inca.  Though 
called  Virgins  of  the  Sun  they  were  really  for  the  Inca,  who 
selected  such  of  them  as  he  pleased  for  his  seraglio.  Such  as 
were  chosen  were  kept  either  at  Cuzco  or  at  the  different  pal- 
aces throughout  the  empire.  In  case  he  chose  to  dispense 
with  any  of  these,  they  were  returned  to  their  former  homes, 
where  they  were  treated  with  marked  distinction  as  brides  of 
the  Inca.  If  guilty  of  any  loose  conduct  while  in  the  House 
of  the  Virgins,  however,  they  and  all  connected  with  them 
were  punished  with  death. 

The  empire  of  Peru  was  divided  into  quarters,  to  each  of 
which  ran  one  of  the  four  great  roads  diverging  from  the 
capital.  Cuzco  was  likewise  divided  into  four  quarters,  and 
the  people  of  each  tribe  or  district  residing  in  the  capital  lived 
in  the  quarter  nearest  their  native  place.  Each  of  these  four 
great  provinces  was  placed  under  a  viceroy,  who  ruled  with 
the  aid  of  one  or  more  councils  for  the  several  departments. 
The  viceroys  resided  some  of  the  time  at  the  capital,  where 
they  formed  a  council  of  state  to  the  Inca.  The  people  were 
divided  into  bodies  of  ten,  and  the  head  of  each  decade  was 


no     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

responsible  for  their  conduct.  Above  these  were  divisions  into 
fifties,  hundreds,  five  hundreds  and  thousands,  with  an  officer 
having  supervision  at  the  head  of  each.  A  further  division 
into  departments  of  ten  thousand  people  was  also  made,  over 
each  of  which  was  placed  a  governor  of  the  blood  of  the  Inca. 

The  judicial  system  was  exceedingly  simple,  and  the  law's 
delays  found  no  place  in  it.  There  were  regular  courts  in 
each  town  and  community,  having  jurisdiction  of  petty  of- 
fenses, while  those  of  more  serious  character  were  heard  by 
superior  judges  or  governors  of  districts.  The  judges  were 
all  appointed  by  the  Inca  and  removed  at  pleasure.  They 
were  obliged  to  determine  every  suit  in  five  days  from  the 
time  it  was  brought,,  and  there  was  no  appeal.  A  board  of 
visitors  traveled  over  the  kingdom,  inquired  into  the  conduct 
of  the  magistrates  and  punished  any  misconduct.  Inferior 
courts  were  required  to  make  monthly  returns  of  their  pro- 
ceedings to  the  superior  ones,  who  in  like  manner  reported  to 
the  viceroys. 

Theft,  adultery  and  murder  were  capital  offenses,  unless 
mitigating  circumstances  were  found.  Blasphemy  against  the 
Sun  and  malediction  of  the  Inca  were  punished  with  death, 
as  also  was  the  burning  of  a  bridge.  There  were  few  laws 
relating  to  property  rights  as  between  private  citizens,  for 
the  reason  that  the  general  policy  of  the  empire  left  no  room 
for  much  in  the  line  of  private  interests.  To  destroy  land- 
marks, burn  a  neighbor's  house  or  cut  off  his  water  supply 
was  a  serious  offense.  In  its  division  of  the  land  and  super- 
intendence of  all  the  business  of  the  people  is  exhibited  the 
most  marked  peculiarity  of  the  Peruvian  polity.  The  whole 
territory  of  the  empire  was  divided  into  three  parts,  one  for 
the  Sun,  one  for  the  Inca  and  the  other  for  the  people.  The 
proportions  varied  according  to  circumstances.  The  lands 
of  the  Sun  supported  the  religious'  establishments,  fed  the 
priesthood  and  supplied  all  things  needed  for  their  elaborate 
ceremonials.  From  that  of  the  Inca  the  royal  household  and 
all  the  needs  of  the  civil  and  military  establishments  were 
supplied.  The  remainder  was  divided  in  equal  shares  per 
capita  among  the  people.     The  division  of  the  soil  was  re- 


PERU  III 

newed  every  year,  and  the  share  assigned  to  each  household 
was  increased  or  diminished  according  to  the  number  in  the 
family.  The  only  distinction  allowed  was  in  favor  of  the 
lower  order  of  nobility,  who  were  given  a  larger  allowance. 
The  people  first  attended  to  the  cultivation  of  the  land  of  the 
Sun.  Next  they  tilled  the  lands  of  the  old,  the  sick,  the 
widow  and  orphan  and  the  soldiers  away  in  actual  service. 
They  were  then  allowed  to  attend  to  their  own,  each  by  him- 
self, with  a  general  obligation  to  be  mutually  helpful  in  case 
of  need.  Lastly  they  cultivated  the  lands  of  the  Inca,  all 
working  together  in  gala  costume  and  making  it  a  time  of 
jubilee  and  festivity.  The  crops  belonging  to  the  Sun  and  the 
Inca  were  gathered  and  placed  in  granaries  provided  for  the 
purpose. 

The  flocks  of  llamas  were  exclusively  the  property  of  the 
Sun  and  Inca  and  were  cared  for  by  shepherds  assigned  to 
that  task.  Great  numbers  of  them  were  slaughtered  for 
religious  festivals.  At  the  proper  time  they  were  sheared  and 
their  fleeces  deposited  in  the  public  magazines,  from  which 
the  wool  was  distributed  among  the  people  according  to  their 
needs,  and  spun  and  woven  by  the  women,  who  were  educated 
to  that  end.  Cotton  however  was  raised  on  the  lowlands  and 
used  for  clothing  by  the  people  in  the  hot  districts.  The 
people  were  also  required  to  weave  for  the  Inca,  and  officers 
appointed  for  the  purpose,  distributed  the  material  and  di- 
rected the  work.  Not  only  did  they  see  to  the  proper  use  of 
the  material  furnished  for  the  use  of  the  Inca,  but  also  to 
that  for  the  people  as  well,  and  care  was  taken  that  nothing 
should  be  wasted  or  misapplied.  The  great  majority  of  the 
people  were  husbandmen,  who  supplied  their  wants  from  the 
lands  assigned  to  them.  There  was  need  however  of  hands 
to  work  the  mines,  which  all  belonged  to  the  Inca,  and  to 
manufacture  the  utensils  and  ornaments  of  his  palace  and  the 
temples.  For  these  a  sufficient  number  were  selected  and 
specially  instructed  in  the  arts.  For  the  construction  of  pal- 
aces, temples,  roads  and  other  public  works,  laborers  were 
drawn  from  the  various  provinces  for  stated  periods  of  service 
and  maintained  at  the  public  expense  while  so  employed.    The 


112  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

distribution  of  burdens  was  fair  and  equal,  so  that  no  person 
was  crushed  by  the  pubHc  exaction. 

An  accurate  census  of  the  inhabitants  was  made  and  re- 
turned every  year,  and  registers  were  kept  of  all  births  and 
deaths.  At  intervals  a  general  survey  of  the  whole  country 
was  made,  showing  the  amount  and  quality  of  the  land,  and 
the  purposes  to  which  it  was  adapted.  This  afforded  the  basis 
for  the  division  of  the  land,  the  apportionment  of  public  work, 
the  levy  of  soldiers  and  the  distribution  of  supplies.  Distri- 
butions among  the  provinces  and  districts  were  determined  by 
superior  officers  and  particulars  were  attended  to  by  the  local 
authorities.  Thus  ancient  Peru  affords  probably  the  only 
instance  on  a  large  scale  of  a  government  mainly  devoted  to 
the  regulation  of  the  business  affairs  of  the  people  with  a 
view  to  promoting  the  general  comfort  and  prosperity  of  all. 
The  fundamental  ideas  of  their  system  were,  that  all  should 
work  industriously  yet  not  beyond  the  limits  of  endurance, 
that  each  should  be  provided  with  the  necessaries  of  life, 
should  marry,  rear  children,  live  virtuously  and  honestly.  The 
vast  and  magnificent  public  works  and  the  great  stores  of 
grain  and  manufactured  stuff  found  by  the  conquerors  bear 
testimony  to  succeessful  employment  of  the  people  in  indus- 
trial pursuits  and  to  excellent  economy  in  the  use  of  the 
products  of  their  labors.  The  Spaniards  reported  finding 
grain  enough  to  last  several  years  in  their  granaries  and  vast 
quantities  of  woolen  and  cotton  stuff,  as  well  as  implements 
and  utensils  of  various  kinds,  in  their  warehouses.  The 
stores  of  grain  from  the  lands  of  the  Sun  and  Inca  were  not 
wasted,  but  in  time  of  need  were  drawn  on  to  supply  the  wants 
of  the  people. 

The  government  was  a  great  business  establishment  calling 
for  a  vast  amount  of  patient  attention  to  details.  The  no- 
bility, while  enjoying  superior  advantages,  were  not  mere 
drones  nor  intriguing  politicians.  Each  had  his  duties  to  per- 
form for  the  public.  The  government  not  only  directed  all 
warlike  undertakings  and  all  works  regarded  by  Europeans  as 
public,  but  also  filled,  to  some  extent,  the  place  of  the  mer- 
chants and  operators  of  mines  and  factories.     In  considering 


PERU  113 

what  was  accomplished  by  this  system  it  must  be  borne  in 
mind  that  all  was  done  without  the  aid  of  steam,  electricity  or 
labor-saving  machinery  of  any  kind,  that  the  use  of  iron 
was  unknown,  and  that  they  were  wholly  unacquainted  with 
letters  or  even  with  the  rudiments  of  picture  writing;  yet  they 
kept  more  accurate  records  of  the  people  and  resources  of  the 
empire  than  were  kept  by  any  contemporaneous  European  na- 
tion. This  was  done  by  means  of  the  quipu,  one  of  their 
peculiar  devices.  It  was  a  cord  about  two  feet  long  composed 
of  different  colored  threads,  tightly  twisted,  from  which 
smaller  threads  were  suspended  like  a  fringe.  The  colors  de- 
noted different  objects  or  ideas  as  yellow,  gold;  white,  silver; 
red,  war;  white,  peace.  Knots  tied  in  the  threads  indicated 
numbers,  and  by  different  combinations  of  threads  and  knots 
numbers  to  any  limit  could  be  expressed.  All  calculations 
were  made  by  use  of  the  quipu  and  with  great  accuracy.  Dif- 
ferent officers  made  reports  to  the  government  on  different 
subjects.  One  had  charge  of  the  revenues  and  reported  the 
stores  of  various  kinds  placed  in  the  public  granaries  and 
warehouses,  and  the  raw  material  distributed  among  the  la- 
borers. Another  made  report  of  births,  deaths,  marriages, 
number  of  men  capable  to  bear  arms  and  other  de- 
tails relating  to  population.  All  returns  were  forwarded  an- 
nually to  Cuzco,  where  they  were  inspected  and  used  by  the 
proper  officers.  These  knotted  skeins  of  many  colored  thread 
afforded  complete  statistics  of  the  material  resources  and  busi- 
ness affairs  of  the  entire  kingdom.  The  system  has  advantages 
over  reports  in  written  or  printed  words.  There  is  no  chance 
to  talk  for  the  purpose  of  concealing  information.  The 
threads  and  knots  had  definite  and  certain  meanings,  and  told 
their  story  once  and  for  all. 

Along  the  great  highways,  which  equalled  Rome's  great 
roads  in  construction,  were  placed  at  intervals  of  ten  or  twelve 
miles  tamhos  for  the  accommodation  of  the  Inca  and  those 
who  traveled  on  public  business.  Some  of  these  were  very 
large  and  designed  to  lodge  the  army  when  marching  through 
the  country.  A  complete  system  of  posts  was  established  along 
all  great  routes.     Small  buildings  were  erected  at  intervals 


114  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

cf  less  than  five  miles,  in  which  were  stationed  a  number  of 
trained  runners,  called  chasquis,  whose  duty  it  was  to  carry 
dispatches  and  articles  for  the  use  of  the  Inca  and  his  court. 
By  this  means  urgent  messages  were  carried  at  the  rate  of 
one  hundred  and  fifty  miles  a  day,  and  the  Inca  was  kept  con- 
stantly informed  of  what  was  taking  place  in  the  most  re- 
mote parts  of  the  empire.  The  military  system  and  policy 
were  on  an  equally  orderly  and  advanced  plane.  Regular 
drill  took  place  in  every  village  twice  or  thrice  a  month.  In 
case  of  war  levies  were  drawn  from  each  province  and  divided 
into  companies  and  battalions  under  proper  officers,  and  the 
whole  army  was  led  by  the  Inca  or  one  of  his  blood.  The 
troops  moved  rapidly  along  the  great  roads  and  found  ample 
provision  for  their  support  at  every  camping  place.  Like 
Rome  in  her  palmy  days,  Peru  steadily  extended  her  dominion 
by  peaceful  negotiation,  persuasion  and  inducements  to  the 
chiefs  and  leaders  of  neighboring  people  wherever  possible, 
but  by  arms  when  other  means  failed.  Thus  the  empire  spread 
from  its  original  small  district  about  Cuzco  northward  beyond 
Quito  to  about  two  degrees  north  latitude  and  south  to  about 
thirty-seven  degrees  south  latitude,  and  from  the  Pacific  on 
the  West  to  an  unknown  boundary  on  the  eastern  slope  of 
the  Andes.  Each  conquered  district  was  carefully  surveyed 
and  the  lands  apportioned  on  the  same  principles  as  were  ap- 
plied in  other  parts  of  the  empire.  The  people,  especially  the 
chiefs,  were  taught  to  speak  the  Quinchua  tongue,  the  lan- 
guage of  the  court,  and  for  this  purpose  teachers  were  sent 
into  the  newly  acquired  province.  In  case  of  serious  disaf- 
fection or  continued  turbulence  on  the  part  of  the  inhabitants 
of  any  district  the  people,  or  a  considerable  portion  of  them, 
were  transplanted  into  some  distant  province,  where  they  were 
surrounded  by  subjects  of  tried  fidelity,  and  their  places  filled 
by  the  displaced  population. 

While  polygamy  was  allowed  to  the  Inca,  who  took  to  him- 
self wives  and  concubines  in  great  multitude,  and  also  to  the 
great  nobles,  and  while  the  Inca  took  one  of  his  own  sisters 
for  his  queen,  the  common  man  was  restricted  to  one  wife, 
to  be  selected  from  the  community  in  which  he  lived,  but  was 


PERU  115 

forbidden  to  take  his  sister.  Marriage  was  compulsory.  On 
a  stated  day  in  each  year  all  those  of  marriageable  ages,  males 
of  not  less  than  twenty-four  and  females  of  eighteen  to 
twenty,  were  called  together  in  the  great  squares  of  the  towns 
and  villages.  The  Inca  was  master  of  ceremonies  in  the  as- 
sembly of  his  own  kindred  and  married  the  different  pairs  by 
taking  their  hands  and  placing  one  within  the  other  and  de- 
claring them  man  and  wife.  The  same  ceremony  was  per- 
formed for  the  common  people  by  the  local  magistrates.  The 
consent  of  the  parents  was  required.  A  dwelling  was  pre- 
pared for  each  couple  by  the  district,  and  their  share  of  the 
land  was  set  off  to  them.  The  simple  marriage  ceremony  was 
followed  by  general  festivities  among  the  friends  of  the 
parties,  which  lasted  several  days,  and  as  all  the  weddings 
for  the  year  took  place  on  the  same  day,  nearly  the  whole 
population  of  the  empire  joined  in  the  jubilee.  It  is  asserted 
that  there  was  not  a  prostitute  in  the  whole  empire.  What 
rules  obtained  with  reference  to  the  remarriage  of  widows  and 
widowers  the  writer  has  not  been  able  to  ascertain.  The 
general  policy  seems  to  have  been  to  promote  industry  and 
virtue  by  providing  all  with  homes  and  family  ties. 

The  educational  system  was  based  on  the  theory  that  each 
should  be  taught  that  and  that  only  which  pertained  to  his 
particular  calling.  A  favorite  maxim  of  Tupac  Inca  Yupan- 
quin  is  said  to  have  been  that :  "Science  was  not  intended  for 
the  people;  but  for  those  of  generous  blood.  Persons  of  low 
degree  are  only  puffed  up  by  it,  and  rendered  vain  and  arro- 
gant. Neither  should  such  meddle  with  the  affairs  of  gov- 
ernment, for  this  would  bring  high  offices  into  disrepute  and 
cause  detriment  to  the  state." 

The  members  of  the  numerous  families  allied  by  blood  to 
the  Incas  were  educated  by  their  amantas  or  wise  men  at  semi- 
naries provided  for  the  purpose.  They  were  instructed  with 
especial  reference  to  the  stations  they  were  to  occupy.  They 
were  carefully  taught  the  principles  of  government  and  the 
laws  they  were  to  administer.  Those  who  were  to  assume 
priestly  functions  were  specially  instructed  in  religious  rites. 
All  were  taught  to  speak  the  court  language  in  its  puritv  and 


ii6  EVOLUTIOfN  OF  GOVERNMENTS  AND  LAWS 

learned  the  science  of  the  quipus,  which  at  the  same  time 
covered  the  field  of  mathematics  and  supplied  the  place  of 
written  records.  Historical  traditions  were  transmitted  orally, 
supplemented  by  the  data  recorded  by  means  of  the  quipus. 
By  this  method  a  considerable  degree  of  accuracy  could  be 
preserved  in  a  tale  passed  down  through  many  generations. 
The  use  of  the  quipu  would  seem  capable  of  indefinite  exten- 
sion and  elaboration,  for  threads  of  different  colors  and 
lengths  knotted  and  combined  in  various  ways  would  possess 
as  great  capacity  for  expressing  ideas  as  arbitrary  characters 
marked  on  paper.  The  use  of  them  appears  less  convenient, 
but  it  is  evident  that  the  possibilities  of  communication  by 
means  of  them  are  unlimited.  The  number  of  primary  threads 
for  characters  could  be  multiplied  indefinitely  and  moulded 
to  use  in  the  same  manner  as  letters  are  now  used.  It  seems, 
however,  that  the  Peruvians  had  not  developed  the  system  to 
this  extent,  but  used  the  threads  as  symbols  of  things  and  to 
a  limited  extent  of  abstract  ideas. 

The  education  of  the  lower  orders  was  not  wholly  neglected. 
Those  engaged  in  agriculture  were  instructed  in, the  cultiva- 
tion of  such  products  as  were  adapted  to  the  lands  to  which 
they  were  assigned.  The  varieties  of  climate  due  to  differ- 
ence in  altitude,  ranging  from  tropical  heat  along  the  sea 
coast  to  perpetual  snow  on  the  mountain  tops,  afforded  a 
great  diversity  of  products  in  neighboring  districts.  Ban- 
anas, manioc  and  other  tropical  products  on  the  hot  lands, 
Indian  corn,  maguey,  ciica,  etc.,  a  little  higher  up,  potatoes 
and  quinoa,  a  grain  resembling  rice,  in  the  cool  mountain 
regions,  and  still  higher  pasture  lands  for  the  llamas,  wild 
sheep  and  other  wild  animals.  All  the  animals,  wild  as  well 
as  domesticated,  belonged  to  the  Inca.  At  the  annual  great 
hunts  there  was  a  general  muster  of  the  people  of  the  district 
to  round  up  all  within  the  hunted  territory.  Beasts  of  prey 
were  killed,  but  discrimination  was  used,  and  only  the  male 
deer  and  the  inferior  sort  of  sheep  were  killed  for  food. 
The  rest  of  the  sheep  were  sheared  and  turned  loose  again. 
Of  all  the  people  on  the  American  continent  the  Peruvians 
alone  kept  domestic  animals,  and  they  only  llamas,  alapacas 


PERU  11/ 

and  other  animals  of  the  sheep  kind.  The  llamas  were  used 
as  pack  carriers.  In  tilling  the  soil  the  natives  had  no  assist- 
ance from  draft  animals.  All  was  done  with  human  strength. 
The  value  of  manures  was  well  understood,  and  extensive  use 
was  made  of  the  guano  deposits  on  the  islands  near  the  coast. 
Vast  labor  was  expended  in  terracing  the  steep  mountain  sides 
and  for  the  purposes  of  irrigation,  aqueducts,  which  would  do 
credit  to  any  country,  were  constructed  of  closely  fitted  and 
cemented  stone.  One  traversing  the  district  of  Condesuyu 
extended  over  four  hundred  miles.  In  the  execution  of  these 
works  the  usual  engineering  difficulties  were  met  and  success- 
fully overcome,  rivers  were  bridged,  mountains  tunneled  and 
the  waters  of  the  lakes  and  reservoirs  in  the  highlands  stored 
and  distributed  along  the  slopes  where  moisture  was  most 
needed.  In  spots  where  there  was  lack  of  rainfall  and  no 
means  of  irrigation,  pits  were  dug  to  a  considerable  depth  to 
take  advantage  of  the  moisture  from  below,  and  by  rich 
manuring  crops  were  raised  in  these  cellar  like  gardens. 
While  the  implements  of  agriculture  were  of  the  most  primi- 
tive kind,  and  no  aid  was  obtained  from  draft  animals  or 
machinery,  the  results  were  satisfactory  and  Peru  was  pre- 
eminently a  land  of  plenty.  These  results  flowed  from  the 
governmental  policy  and  as  a  result  of  the  education  and  di- 
rection imparted  by  the  orders  of  the  Inca.  The  compara- 
tively small  numbers  engaged  in  mechanical  arts  were  also 
instructed  in  their  callings  and,  while  the  use  of  iron  was 
unknown,  skillful  use  was  made  of  gold,  silver,  copper,  and 
tin.  Tools  nearly  equalling  steel  in  hardness  were  made  of 
copper  alloyed  with  tin.  The  art  of  weaving  was  well  ad- 
vanced, though  by  primitive  methods.  In  cutting  and  moving 
granite  and  other  hard  stones  they  were  well  skilled.  By 
what  process  the  immense  blocks,  containing  hundreds  and 
even  thousands  of  cubic  feet  each,  were  taken  from  their 
beds  in  the  quarries,  moved  long  distances  and  placed  in  the 
temples  and  palaces  is  unexplained. 

Their  architecture  is  said  to  be  wanting  in  grandure  and 
finish.  They  constructed  no  high  buildings.  Those  even  of 
greatest  pretensions  rarely  had  a  second  story.     The  walls 


ii8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

were  massive  but  without  openings  other  than  doors,  and  the 
roofs  were  often  thatched.  This  may  not  be  due  altogether 
to  a  want  of  boldness  of  conception,  for  the  frequency  of 
earthquakes  rendered  this  style  best  adapted  to  safety  and 
permanence.  In  bridging  streams  and  chasms  they  exhibited 
both  ingenuity  and  skill.  Suspension  bridges  two  hundred 
feet  or  more  in  length  were  found  by  the  Spaniards  and  con- 
tinued in  serviceable  condition  for  many  years.  They  were 
supported  by  ropes  stretched  between  stone  buttresses.  Though 
the  products  of  Peru  were  sufficiently  diverse  to  afford  a  basis 
for  much  internal  commerce,  and  though  gold  and  silver  in 
great  abundance  were  produced  and  used  in  ornamenting  the 
temples  and  making  vessels  and  implements  for  use  and  orna- 
ment for  the  Inca,  no  such  thing  as  money  or  any  substitute 
for  it  was  known.  Fairs  held  three  times  a  month  in  suitable 
places  afforded  at  the  same  time  a  holiday  and  opportunity 
for  exchanging  products  by  direct  barter. 

Ancient  Peru  presents  an  instance  of  a  thoroughly  organ- 
ized state,  standing  alone  on  a  continent  filled  with  scattered 
tribes  of  savages,  but  built  from  material  similar  to  the  chaotic 
mass  filling  the  balance  .of  the  land.  Its  policy  was  clearly 
defined  and  steadily  and  successfully  carried  out.  It  brought 
order  out  of  chaos.  It  waged  war  on  its  borders,  that  the 
area  of  internal  peace  might  be  enlarged.  It  exacted  industry 
and  gave  security  and  plenty  in  return.  It  enforced  morality 
and  exacted  strict  obedience  to  authority  and  observance  of 
the  forms  of  a  religion  exceptionally  free  from  gross  super- 
stitions and  elevated  in  tone  for  a  people  so  environed.  No 
other  known  government  ever  succeeded  so  entirely  in  or- 
dering the  private  affairs  and  daily  life  of  its  people,  and  no 
other  dynasty  labored  so  persistently  to  guard  the  people  from 
want.  Without  any  aid  by  suggestion  from  other  growing 
civilizations,  it  evolved  a  system  based  on  fundamental  ideas 
so  clear,  strong  and  well  enforced  as  to  challenge  the  wonder 
and  admiration  of  all. 

It  has  been  a  source  of  wonder  to  some  that  the  wants 
of  the  masses  could  be  so  well  supplied  when  the  burden  rested 
on  the  toilers,  not  only  of  cultivating  their  own  lands  and 


PERU  119 

supplying  their  own  needs,  but  also  of  tilling  the  lands  of  the 
Inca  and  the  Sun  as  well,  besides  building  and  maintaining  all 
public  works  and  performing  military  service.  We  have  no 
exact  data  showing  the  numbers  of  th»  nobility,  priesthood 
and  inferior  officials  or  of  the  common  people.  Probably  the 
ratio  of  privileged  classes  to  the  whole  population  was  some- 
what higher  than  in  most  of  the  more  advanced  nations  of 
modern  times.  But  the  ratio  of  the  whole  number  of  offi- 
cials, priests  and  soldiers  to  the  total  population  was  much 
less  than  in  the  military  states  of  Europe.  Another  element 
of  great  importance,  which  seems  to  be  overlooked,  is  the 
entire  absence  in  Peru  of  those  classes  who  live  in  luxury 
from  rents  of  land,  interest  on  money  and  other  forms  of 
income  from  property.  In  all  modern  states  these  constitute 
the  most  favored  portion  of  the  people,  and  the  cost  of  their 
maintenance  is  greatest.  As  they  render  no  service  in  return 
for  their  incomes,  whatever  they  consume  is  a  net  loss  to 
the  producers.  Still  another  and  more  numerous,  though  per- 
haps less  costly  class,  found  in  all  the  most  advanced  modern 
nations,  is  the  idle  poor,  who  are  either  unable  or  unwilling 
to  find  employment.  The  Inca  found  useful  employment  for 
all.  The  judges  administered  the  law  and  paid  advocates 
were  unknown. 

The  system  of  government  was  so  thorough  that  there  was 
no  room  for  a  compHcated  code  of  laws.  Each  was  required 
to  do  his  appointed  share  of  labor  and  given  his  due  return. 
His  assurance  against  want  in  times  of  misfortune  lay  in  the 
public  storehouses  and  the  law  which  required  his  neighbors 
to  till  his  field,  when  he  was  unable  to  do  so.  There  were 
no  deeds,  mortgages,  leases  or  other  contracts  relating  to 
land,  for  each  had  the  use  but  not  the  ownership  of  the  soil. 
There  were  no  notes  or  other  obligations  for  money,  for  there 
was  no  money.  There  were  no  slaves  nor  contracts  of  hire. 
All  served  the  Inca  and  helped  each  other.  There  were  no 
taxes  to  be  raised  from  a  sale  of  crops.  The  produce  of  the 
Inca's  lands,  mines  and  flocks  supported  the  government  and 
the  lands  of  the  Sun,  the  priesthood.  Neither  the  tax  gath- 
erer, the  usurer  nor  the  landlord  ever  came  to  seize  and  sell 


120  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  newly  ripened  harvest.  The  government  was  never  a 
debtor,  nor  yet  wanted  means  to  arm  and  equip  soldiers,  build 
palaces,  temples,  roads,  bridges  and  other  public  works. 

Authorities 
W.  H.  Prescott:     History  of  the  Conquest  of  Peru. 
C.  Enoch :     Peru. 
Encyclopaedia  Britannica. 


CHAPTER  VI 


Egypt 


To  the  records  made  by  themselves  only  we  must  look  for 
accounts  of  the  earliest  civilization  of  the  Egyptians.  Of  ne- 
cessity therefore  the  first  to  be  known  is  concerning  a  people 
already  sufficiently  advanced  to  have  developed  a  written  lan- 
guage, except  as  it  may  be  carried  back  by  traditions  passed 
down  from  earlier  times  and  subsequently  recorded.  Though 
the  surroundings  of  the  valley  of  the  Nile  suggest  conditions 
under  which  a  race  of  people  might  have  developed  in  peace, 
secure  against  attacks  from  external  enemies,  history  fails 
to  reach  such  a  time.  Whether  the  ancient  Egyptians,  whose 
descendants  still  occupy  the  country,  originated  in  Egypt  or 
elsewhere  cannot  be  answered  from  any  reliable  evidence. 
Like  most  people,  they  begin  their  account  of  their  nation 
with  a  mythical  line  of  supernatural  rulers,  and  a  time  when 
the  gods  resided  on  earth  and  gave  mortals  the  benefit  of 
their  instruction.  If  the  truth  be  that  the  human  race  is  the 
product  of  evolution  from  the  lower  to  the  higher,  the  ad- 
vancement has  not  been  steady  and  continuous  with  any  people 
of  whom  we  have  a  long  history.  Times  of  marked  intel- 
lectual activity  as  well  as  of  moral  advancement  have  been 
followed  by  periods  of  torpor  and  degradation.  It  may  there- 
fore well  happen,  that  at  one  period  the  people  may  look  back 
to  a  prior  time  as  a  golden  age,  when  men  were  wiser  and 
better,  and  when  the  gods  came  nearer  to  them.  Thus  every-r 
where  we  find  people  looking  to  their  ancestors  for  wisdom. 
The  accumulation  of  knowledge  at  any  period  is  the  product 
of  the  past,  for  which  prior  generations  must  be  given  credit, 
and  there  is  a  tenclency  to  credit  it  all  to  some  favorite  age. 
Whether  the  Egyptians  were  pioneers,  in  advance  of  all  other 
people  in  civilization,  cannot  be  stated  with  certainty,  but  that 
they  have  left  unmistakable  proofs  of  the  antiquity  of  their 


122  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

advancement,  which  antedate  those  of  any  other  people  may 
be  safely  asserted.  Owing  to  the  peculiar  climate  of  the  coun- 
try and  the  desire  to  leave  enduring  monuments,  the  investi- 
gator of  today  may  study  at  first  hands  the  work  of  Egyptians 
who  lived  many  thousands  of  years  ago.  He  may  read  on 
granite  monuments,  or  even  on  frail  papyrus,  the  inscriptions 
of  Egyptian  artists  and  scribes  in  the  original  hieroglyphics 
as  made  by  themselves  long  prior  to  the  time  of  Moses  or 
Joseph.  The  profound  interest  with  which  students  of  all  the 
sciences  to  which  they  are  related  have  in  recent  years  stud- 
ied these  ancient  records,  and  the  diligence  and  success  with 
which  their  efforts  to  decipher  and  interpret  them  have  been 
rewarded,  have  added  greatly  to  our  knowledge  of  the  past 
and  of  the  arts,  which  before  were  traced  only  to  people 
nearer  to  us  in  time  and  in  blood. 

The  starting  point,  from  which  Egyptian  history  is  written 
in  modern  times,  is  the  reign  of  Menes,  who  united  the  upper 
and  lower  countries  and  established  his  capital  at  Memphis. 
The  date  of  his  reign  is  not  definitely  known,  but  it  could  not 
have  been  much  later  than  4000  B.C.  and  may  have  been 
much  earlier.  From  his  time  a  list  of  successive  dynasties  is 
given  by  ancient  writers,  and  Herodotus  tells  us,  that  the 
priests  read  to  him  from  a  papyrus  the  names  of  330  mon- 
archs,  who  ruled  as  his  successors  to  the  reign  of  Moeris. 
After  him  came  a  great  monarch,  whose  name  he  calls  Sesos- 
tris.  He  also  says  that  they  told  him  that  in  the  time  of 
Men  (Menes),  all  Egypt  except  the  Thebaic  canton  was  a 
marsh,  none  of  the  land  below  lake  Moeris  then  showing  itself 
above  the  surface  of  the  water.  There  are  no  records  from 
which  a  connected  account  of  the  successive  rulers  can  be 
constructed,  and  it  is  quite  impossible  to  fix  dates  in  the  early 
reigns  with  any  fair  degree  of  accuracy.  How  many  people 
were  ruled  over  by  Menes  and  what  system  of  government  had 
prevailed  before  his  time,  we  do  not  know,  nor  can  the  state 
of  the  arts  at  that  time  be  declared,  nor  the  condition  of  the 
valley  of  the  Nile  be  described  further  than  that  it  was  ex- 
ceedingly fertile,  then  as  now,  and  subject  to  yearly  overflow 
from  the  river.    Whether  it  then  contained  forests  and  waste 


EGYPT  123 

lands  or  was  already  cleared  and  cultivated  is  unknown.  How 
long  the  people  had  then  been  dwellers  in  the  valley  of  the 
Nile,  whence  they  came  and  how  they  had  lived  in  prior  times, 
are  questions  that  cannot  be  answered. 

The  contemporaneous  inscriptions  do  not  begin  till  about 
the  time  of  what  is  termed  the  Fourth  Dynasty,  if  the  scholars 
are  correct  in  their  inferences.  The  three  great  pyramids  of 
Gizeh,  built  as  enduring  tombs  of  successive  Pharaohs,  are 
assigned  to  this  time.  These  great  works  evidence  a  numer- 
ous population,  without  whose  labor  they  could  not  have 
been  constructed,  a  strong  government,  able  to  command  the 
services  of  the  necessary  workers,  and  also  indicate  peaceful 
relations  with  all  other  people,  for  war  of  any  great  magni- 
tude would  almost  certainly  have  absorbed  the  attention  and 
energies  of  the  nation  to  too  great  a  degree  to  allow  such 
vast  works  to  be  carried  forward  at  the  same  time.  These 
monuments  tell  us  with  certainty  that  great  numbers  of  people 
worked  in  concert  for  their  completion,  and  that  the  govern- 
ment must  have  been  firmly  established  and  the  people  ac- 
customed to  the  exercise  of  authority.  The  implements  used 
in  their  construction  prove  that  the  art  of  metal  working  was 
well  advanced.  The  power  employed  in  transporting  the  ma- 
terial and  placing  it  in  position,  as  shown  by  the  pictures  and 
inscriptions,  was  mainly  the  combined  strength  of  great  num- 
bers; but  Herodotus  tells  us  that  machines  were  used  for 
raising  the  great  stones  to  their  positions,  and  this  seems  prob- 
able, though  we  have  no  description  of  them.  The  pictures, 
which  have  been  preserved,  exhibit  the  evolution  of  dress 
from  a  simple  short  skirt,  not  much  more  to  the  purpose  than 
a  breech  clout,  to  a  costume  consisting  of  a  shirt,  skirt,  long 
over  dress,  sandals,  wig,  etc.  It  is  not  necessary  to  mention 
mere  ornaments,  for  the  lowest  races  all  indulge  in  ornaments 
according  to  taste  and  ability,  though  clothing  be  considered  a 
superfluous  luxury  or  not  thought  of  at  all.  At  the  time  of 
the  building  of  the  great  pyramids  the  evolution  in  dress  was 
not  much  past  the  primary  stage  and  short  skirts  were  in 
fashion.  In  agriculture,  though  the  implements  used  were 
crude,  the  variety  of  crops  raised  was  quite  extensive,  and 


124  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  people  were  well  supplied  with  cattle,  sheep,  goats  and 
donkeys,  as  well  as  with  fowls,  especially  geese  and  ducks. 

In  the  earliest  times  of  which  we  have  any  record,  a  division 
of  the  country  into  the  upper  or  south  and  lower  or  north  was 
recognized.  The  political  organization  of  the  upper  country 
seems  to  have  been  in  advance  of  that  of  the  lower,  and  the 
internal  development  of  it  probably  preceded  that  of  the  more 
marshy  delta.  While  the  government  of  Egypt  was  at  all 
times  monarchical  in  form,  the  actual  administration  was 
ordinarily  in  accordance  with  established  rules,  which  were 
recognized  as  limitations  on  the  power  of  the  officials.  The 
people,  however,  were  without  substantial  guarantee  against 
the  oppression  of  despotic  Pharaohs,  and  the  construction  of 
the  great  pyramids  was  a  heavy  burden,  mercilessly  imposed 
on  his  subjects  by  the  king. 

According  to  the  earliest  accounts,  under  what  is  termed  the 
old  empire,  upper  Egypt  was  divided  into  provinces,  the  local 
government  of  each  of  which  was  hereditary  in  a  noble  family. 
The  same  family  also  ordinarily  held  the  office  of  high  priest. 
In  those  times  the  nobility  seem  to  have  held  a  large  share  of 
political  power,  and  the  central  authority  to  have  been  less 
potent  than  in  later  times.  The  division  of  lower  Egypt  into 
provinces  or  nomes  appears  to  have  followed  later. 

The  character  of  the  government  was  unmilitary.  The 
worship  of  the  gods,  maintaining  the  temples  and  honoring 
the  dead,  occupied  a  large  share  of  the  attention  of  the  gov- 
ernment, and  required  the  services  of  a  numerous  priesthood, 
always  closely  allied  to  the  civil  authorities,  and  who  usually 
combined  priestly  functions  with  administrative  ones.  There 
were  thirty  "great  men  of  the  south"  having  unequal  districts 
and  powers.  A  governor  of  a  district  was  also  a  judge  and 
ruler  of  the  chief  town.  It  was  the  fashion  to  combine  a 
long  list  of  official  titles,  many  of  which  were  often  without 
real  significance.  As  judges  they  were  priests  of  Ma'at  the 
goddess  of  truth.  Over  these  thirty  chief  men  of  the  South 
was  a  governor  of  the  south.  The  lower  country  was  after- 
ward divided  into  similar  nomes  and  placed  under  a  governor 
of  the  north  country,  but  at  what  date  these  were  established 


EGYPT  125 

does  not  appear,  though  the  title  of  "governor  of  the  north 
country"  appears  in  inscriptions  of  the  time  of  the  Middle 
empire.  In  each  of  the  small  districts  into  which  the  country 
was  divided,  there  was  a  court  of  justice,  a  storehouse  for 
corn  and  a  local  militia.  The  central  power  was  mainely  con- 
cerned with  the  revenue  and  filling  the  treasure  houses. 
There  was  a  central  finance  department,  which  employed 
numerous  superintendents  and  scribes  to  attend  to  the  col- 
lection and  care  of  the  public  revenues,  most  of  which  were 
received  in  kind  from  the  fields,  mines  and  workshops.  There 
was  a  superintendent  of  agriculture,  who  had  general  charge 
of  matters  connected  with  overflow  and  irrigation,  and  also 
a  superintendent  of  the  forests  in  the  border  country  up  the 
Nile. 

The  chief  judge  was  the  highest  ofBcial  under  the  king. 
He  was  the  "leader  of  the  great  men  of  the  south  and  of  the 
north"  and  "second  after  the  king  in  the  court  of  the  palace," 
to  these  were  often  added  a  long  list  of  priestly  and  other 
titles,  some  of  which  indicated  real  power  and  substantial 
duties.  Under  him  were  numerous  judges  of  different  de- 
grees. Six  great  courts  are  spoken  of,  made  up  of  local 
judges.  Great  respect  was  entertained  for  law  and  the 
judicial  offices. 

In  each  province  or  nome  there  were  officials  of  high  and 
low  degree  charged  with  various  public  functions.  As  under 
most  modern  governments,  there  was  a  constant  struggle  to 
gain  official  preferment,  and  the  main  end  of  all  public  ser- 
vants was  the  gathering  of  revenues  for  themselves  and  those 
under  whom  they  served.  The  beneficial  service  rendered  for 
the  multitude  was  in  public  works,  the  administration  of  jus- 
tice and  protection  against  external  enemies.  Of  the  public 
works  those  connected  with  agriculture  and  the  distribution 
of  water  by  canals,  reservoirs,  etc.  were  highly  useful,  while 
the  construction  of  temples  and  tombs,  for  which  no  other 
people  seem  to  have  had  so  much  regard,  gratified  the  pride 
and  accorded  with  the  sentiments  of  the  people. 

The  monuments  and  records  were  made  to  preserve  the 
memory  of  the  rich  and  powerful.    The  inscriptions  show  the 


126  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

state  and  surroundings  of  the  nobility,  their  storehouses  and 
servants.  As  the  monuments,  on  which  these  inscriptions 
appear,  were  constructed  under  the  orders  of  those  whose 
memory  they  perpetuate  or  their  friends,  the  purpose  they 
subserve  is  primarily  to  attest  their  importance.  What  is 
shown  of  the  condition  of  the  lower  orders  of  society,  is 
merely  as  incident  to  the  state  of  the  chief.  The  old  empire 
exhibits  a  nobility  and  priesthood  with  power  over  the  peas- 
ants and  serfs  firmly  established,  much  wealth  and  luxury  for 
the  higher  orders,  and  settled  habits  of  industry  enforced  on 
the  poor.  The  middle  empire  shows  an  extension  of  the 
official  system,  but  no  marked  change  in  the  organization  of 
society  or  in  the  theory  of  the  government.  How  numerous 
a  class  of  independent  tradesmen  or  small  land  owners  ex- 
isted at  any  period  cannot  be  definitely  determined,  though 
there  appear  to  have  been  some  such. 

The  Twelfth  Dynasty,  covering  the  period  of  about  the 
twentieth  and  twenty-first  centuries  B.C.,  is  spoken  of  as  a 
time  of  good  government,  prosperity  and  advancement  in 
learning.  It  was  the  classical  age  of  letters,  in  which  the 
standard  of  good  writing  was  established.  Afterward  fol- 
lowed a  period  of  weakness  and  decline,  at  the  end  of  which 
the  country  was  invaded  by  the  Hyksos  or  shepherd  kings 
from  the  northeast.  The  particulars  of  their  invasion  and 
rulership  are  not  preserved,  but  it  is  clear  that  the  ancient 
Egyptian  people  were  not  displaced,  nor  were  the  laws  and 
customs  of  the  invaders  imposed  on  the  conquered  nation. 
They  levied  tribute  and  compelled  submission  to  their  power 
for  a  time. 

The  new  empire  began  with  Ahmose  who  drove  out  the 
Hyksos  and  followed  them  into  the  south  of  Palestine.  Un- 
der his  reign  began  the  military  age,  in  which  Egyptian  arms 
were  carried  into  remote  regions.  Palestine  and  Asia  Minor 
to  the  Euphrates  were  overrun  by  the  monarchs  of  the  Eigh- 
teenth and  Nineteenth  dynasties  and  the  country  to  the  south 
was  subdued:  Tribute  was  exacted  from  the  conquered  na- 
tions, but  Egyptian  civilization  failed  to  take  root  and  grow  on 
any  foreign  soil.    Contact  with  distant  people  had  its  effect  on 


EGYPT  127 

the  Egyptians,  and  the  isolation  in  which  they  had  apparently 
lived  during  all  of  the  early  dynasties  was  at  an  end.  With 
varying  success  they  fought  the  Asiatics  on  the  north  and 
the  Ethiopians  on  the  south.  Thothmes  III  crossed  the  Eu- 
phrates and  received  tribute  from  many  nations.  Contact 
with  distant  people  gave  new  ideas  as  well  as  tribute  to  the 
Egyptians.  Amenhotep  IV  attempted  to  reform  the  religion 
and  set  up  the  worship  of  the  Sun  god  as  the  only  living  god. 
He  sought  not  merely  to  introduce  the  worship  of  this  deity 
but  also  to  destroy  all  the  old  gods.  The  change  however 
failed  to  endure,  and  under  his  successors  the  old  worship 
was  restored. 

Under  Ramses  II  Egypt  seems  to  have  reached  the  zenith 
of  its  power,  and  of  activity  in  the  construction  of  temples 
and  other  great  public  works.  With  the  departure  of  the 
Hyksos  and  the  establishment  of  the  new  empire  some  changes 
in  the  organization  of  the  government  took  place.  The  an- 
cient nomarchs  and  local  landed  aristocracy  gave  way  to  royal 
officials,  and  landed  property  became  concentrated  in  the  pos- 
session of  the  king  and  the  priesthood.  This  change  is  by 
some  attributed  to  military  rewards,  incident  to  the  wars 
against  the  Hyksos,  but  in  Genesis  it  is  recorded,  that  through 
the  policy  of  Joseph  in  storing  up  a  vast  supply  of  grain  dur- 
ing the  seven  years  of  plenty  and  then  selling  it  to  the  people 
during  the  succeeding  seven  years  of  famine,  Pharoah  came 
to  own  all  the  land  except  that  belonging  to  the  temples.  With 
the  ownership  of  all  the  landed  property,  from  which  the 
king  exacted  one-fifth  for  rent,  his  power  became  despotic, 
and  there  were  no  strong  subjects  to  check  it.  The  middle 
order  disappeared,  leaving  the  king  and  his  officials  at  the 
top  and  a  multitude  of  slaves  at  the  base  of  the  social  struc- 
ture. Military  chiefs  and  foreign  mercenary  troops  became 
conspicuous.  It  was  possible  for  foreigners  to  hold  high  po- 
sitions ;  thus  Joseph  was  sold  by  his  brethern  to  Potiphar,  who 
placed  him  at  the  head  of  the  household,  and  afterward 
Pharaoh  raised  him  to  the  highest  office  lender  the  crown. 
The  family  of  Jacob  came  into  Egypt  in  great  favor,  due  to 
the  influence  of  Joseph,  but  afterward  were  reduced  to  hard 
service  under  severe  taskmasters. 


128  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

A  marked  characteristic  of  the  system  of  government  was 
minuteness  of  details  in  official  orders  and  reports.  The 
scribe  was  always  at  hand  to  note  down  every  item  of  reve- 
nue received,  every  expenditure  from  the  treasury,  as  well  as 
every  public  act  of  the  officials.  A  large  proportion  of  the 
population  consisted  of  serfs  and  bondmen,  organized  by 
companies  under  overseers,  who  drove  them  to  their  tasks  as 
mercilessly  as  is  usual  with  slaveholders.  The  workmen  were 
divided  into  companies  of  artisans  and  laborers  in  each  dif- 
ferent kind  of  employment,  and  were  treated  with  rigor  and 
contempt  by  their  superiors.  Above  them  were  officials  of 
all  degrees  from  the  chief  of  the  company  to  the  governor. 
The  laborers  employed  in  the  tombs  and  on  the  public  works 
received  their  rations  from  the  public  granaries  and  store- 
houses. Records  kept  by  chief  workmen  are  still  extant, 
showing  the  names  of  the  workmen,  the  days  on  which  they 
worked  and  failed  to  work  and  the  reasons  for  failure.  Some- 
times strikes  were  caused  by  delaying  or  withholding  their 
rations.  Herodotus  says  the  people  were  divided  into  seven 
distinct  classes.  Priests,  warriors,  cowherds,  swineherds, 
tradesmen,  interpreters  and  boatmen.  That  interpreters 
should  be  mentioned  as  a  class  shows  that  in  his  time  the 
intercourse  with  foreigners  was  very  extensive,  else  there 
could  have  been  no  need  of  many  of  them. 

The  family  ordinarily  consisted  of  husband,  wife  and  chil- 
dren. Polygamy  was  rare,  though  the  rich  made  concubines 
of  maid  servants.  Ramses  II  took  three  royal  consorts.  The 
marriage  of  sisters  was  practiced,  and  seems  to  have  been  of 
increased  frequency  after  the  Greek  conquest,  at  least  among 
the  kings.  Among  the  lower  classes  morals  were  very  low, 
and  marriages  often  informal  and  broken  at  pleasure.  There 
was  no  seclusion  of  women  as  under  Mohammedan  rule. 
Except  among  the  baser  sort,  the  natural  bonds  of  affection 
between  parents  and  children  appear  to  have  been  as  strong 
as  elsewhere,  and  a  marked  peculiarity  of  the  people  was  their 
inordinate  reverence  for  and  care  of  the  dead.  This  did  not 
end  with  embalming  the  body  and  building  a  costly  tomb,  but 
the  dead  required  a  distinct  department  of  the  government. 


EGYPT  129 

Mothers  nursed  their  children  for  three  years,  and  in  their 
early  years  kept  them  nude,  but  they  had  dolls  and  toys  to 
play  with.  The  school  boy  in  ancient  times  was  dressed  with 
a  girdle.  Children  of  the  upper  classes  were  often  sent  away 
from  home  to  school,  even  at  a  tender  age.  The  school  course 
included  ethics,  practical  philosophy  and  manners.  The  road 
to  political  station  was  through  the  school,  and  the  statesman 
must  first  become  a  scribe.  A  generous  use  of  the  rod  was 
deemed  essential  to  the  proper  development  of  the  student. 
All  classes  appear  to  have  shared  to  some  extent  in  learning. 
Considering  the  great  attention  paid  to  letters  by  the  Egyp- 
tians, it  seems  strange  that  connected  histories  have  not  been 
preserved  to  us.  Fragments  of  official  documents  and  cor- 
respondence and  the  inscriptions  engraved  on  enduring  monu- 
ments furnish  the  disjointed  writings,  from  which  the  modern 
scholar  must  form  his  description  of  Egyptian  civilization. 
They  made  much  progress  in  astronomy,  divided  the  year 
into  365  days  and  determined  the  direction  of  the  poles  with 
accuracy.  In  medicine  the  leading  idea  seems  to  have  cor- 
responded with  that  not  long  since  abandoned,  that  the  more 
filthy  and  repulsive  the  substance,  the  more  potent  as  a  medi- 
cine. Many  and  most  gross  superstitions,  too  numerous  for 
even  a  general  description,  were  indulged  in  by  all  classes  of 
the  people.  Something  like  a  picture  of  the  times  is  ex- 
hibited by  the  record  of  a  celebrated  case  which  came  up  in 
the  time  of  Ramses  IX  (about  11 00  B.C.).  Under  the  gov- 
ernor in  Thebes,  there  was  a  ''prince  of  the  town"  over  the 
eastern  part,  and  a  ''prince  of  the  west"  or  "chief  of  the 
police  of  the  necropolis"  over  the  western  part,  the  city  of 
the  dead.  Complaint  was  entered  by  the  prince  of  the  town 
that  tombs  in  the  necropolis  had  been  robbed.  The  court 
having  jurisdiction  of  the  case  consisted  of  "Cha  emuese  the 
superintendent  of  the  town  and  governor"  assisted  by  Nesan- 
ni,  scribe  of  Pharoah  and  Neferckere-em-per-Amun  the 
speaker  of  Pharaoh.  A  commission  was  appointed  by  the 
court  to  examine  the  tombs  and  report.  This  was  done,  and 
the  report  describes  circumstantially  what  pyramids  and 
mummy  pits  were  examined.     Out  of  ten,  nine  were  found 


130  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

uninjured.  As  to  the  other  the  commissioners  reported  ''The 
pyramid  of  the  King  Sebekemsaf.  It  was  found  that  the 
thieves  had  bored  a  mine  and  penetrated  into  the  mummy 
chamber.  They  had  made  their  way  out  of  the  outer  hall 
of  the  tomb  of  Nebamun  the  superintendent  of  food  under 
Thothmes  III.  It  was  found  that  the  king's  burial  place  had 
been  robbed  of  the  monarch ;  in  the  place  also  where  the  royal 
consort  Nubch'as  was  buried  the  thieves  had  laid  hands  on 
her."  "The  governor  and  the  prince  vassals  ordered  a  thor- 
ough examination  to  be  made,  and  it  was  proved  exactly  by 
what  means  the  thieves  had  laid  hands  on  this  king  and  on 
his  royal  consort." 

The  examination  of  the  private  tombs  disclosed  that  those 
of  two  "singers  of  the  high-priestess  of  Amon  Re,  King  of 
the  gods"  had  been  broken  into  and  other  private  tombs.  "It 
was  found  that  they  had  all  been  broken  into  by  the  thieves, 
they  had  torn  the  lords  (i.e.  the  bodies),  out  of  their  coffins 
and  out  of  their  bandages,  they  had  thrown  them  on  the 
ground,  they  had  stolen  the  household  stuff  which  had  been 
buried  with  them,  together  with  the  gold,  silver  and  jewels 
found  in  their  bandages."  The  commission  so  reported,  and 
the  prince  of  the  necropolis  sent  in  the  names  of  the  sup- 
posed thieves,  who  were  immediately  arrested.  They  were 
"examined,"  that  is  "beaten  with  stick  on  their  hands  and 
feet,"  until  they  confessed  that  they  had  entered  the  tomb 
of  the  king  and  taken  rich  ornaments  of  gold  from  the  mum- 
mies of  the  king  and  queen  and  divided  the  booty  among  the 
eight  robbers.  To  supplement  and  make  good  their  confes- 
sion they  were  required  to  identify  the  pyramid  they  had 
robbed.  The  governor  and  royal  scribe  commanded  them  to 
be  taken  in  their  presence  to  the  necropolis,  where  they  identi- 
fied the  tomb  of  Sebekemsaf  as  that  to  which  their  confession 
referred.  The  court  thereupon  made  report  to  the  Pharaoh, 
who  alone  could  pronounce  sentence  in  the  case.  Meanwhile 
the  thieves  were  placed  in  custody  of  the  high  priest  of  Amon 
and  confined  in  the  prison  of  the  temple!  On  suspicion  of 
other  desecrations  a  metal  worker  of  bad  repute  was  ar- 
rested and  "examined."     He  confessed  that  he  had  been  in 


EGYPT  131 

the  tomb  of  Ese,  wife  of  Ramses  II  but,  when  taken  to  show 
the  scene  of  his  crime,  he  pointed  out  the  graves  of  the  chil- 
dren of  Ramses  II,  in  which  no  one  had  been  buried.  There- 
after, "the  princess  examined  the  tombs  and  the  large  cham- 
bers in  the  place  of  the  beauties,  in  which  the  beautiful  royal 
children,  the  royal  consorts,  the  royal  mothers  and  fathers  of 
the  mothers  of  the  Pharaoh  rest.  They  were  found  unin- 
jured." Thereupon  there  was  great  rejoicing  and  a  "great 
embassy  to  the  town  consisting  of  the  inspectors,  the  chiefs 
of  the  workmen  of  the  necropolis,  the  officers  of  the  police,  the 
police  and  all  the  bondservants  of  the  necropolis  of  western 
Thebes." 

Three  years  later,  other  robberies  having  occurred,  about 
sixty  arrests  were  made,  including  many  officials  of  low  rank, 
a  scribe  of  the  treasury  of  Amon,  a  priest  of  Amon  and  one 
of  Chons.  They  had  robbed  the  outer  chambers  of  the  tombs 
of  Ramses  II  and  Sety  I  and  sold  the  stolen  property.  A 
quarrel  over  the  division  of  the  spoils  led  to  the  discovery. 
This  capture  did  not  end  the  thefts,  and  it  was  finally  deter- 
mined to  abandon  the  tombs  in  the  desert  in  order  to  save  the 
mummies.  These  were  moved  from  place  to  place,  and  finally 
concealed  in  a  deep  rocky  pit  in  the  mountains  of  Der-el-bahri, 
where  they  reposed  until  modern  robbers  found  the  pit  in 
1875,  ^^d  i^  1 88 1  the  authorities  were  informed  of  it,  and 
the  mummies  of  all  the  great  monarchs  of  the  new  empire 
were  brought  to  light.  Great  regard  for  the  remains  of  the 
dead  is  not  exclusively  a  trait  of  the  Egyptians,  but  they  were 
more  lavish  in  their  expenditures  for  the  preservation  of  the 
bodies  of  the  dead  than  any  other  people.  As  the  occurrences 
above  mentioned  show,  their  care  did  not  end  with  embalming 
the  bodies  and  building  vast  tombs  for  them,  but  continued 
in  watching  and  preserving  the  necropolis  from  generation 
to  generation. 

Under  the  old  empire  there  were  six  courts  of  justice  or 
great  houses,  at  the  head  of  which  was  a  chief  judge.  Each 
of  the  "thirty  great  men  of  the  south"  was  a  judge  and  dis- 
trict chief  and  a  member  of  one  of  the  great  houses.  The 
"governor  of  the  south"  alone  had  a  seat  in  all.     These  great 


133  EVOLUTIO'N  OF  GOVERNMENTS  AND  LAWS 

men  had  served  as  scribes  and  inferior  officers  of  the  court 
before  promotion  to  the  full  dignity  of  judges.  Besides  these 
there  were  local  judges  in  the  towns.  The  special  god  of  the 
judges  was  Ma'at  the  goddess  of  truth.  All  judges  of  high 
rank  served  as  her  high  priests.  During  the  middle  empire 
this  organization  of  the  courts  disappeared.  While  the  office 
of  chief  judge  continued,  even  under  the  New  Empire,  the  six 
great  houses  were  no  more.  Under  the  new  empire  the  com- 
position of  the  courts  varied  from  time  to  time,  including 
priests  and  laymen  in  varying  proportions,  but  courts  were 
held  at  fixed  places  where  justice  was  regularly  administered. 
The  procedure  seems  to  have  been  simple.  The  court  being 
seated  the  contending  parties  in  civil  cases  came  before  it 
standing.  The  plaintiff  first  preferred  his  complaint  orally, 
the  defendant  was  then  required  to  answer,  after  which  the 
court  gave  judgment.  The  successful  party  then  turned  to 
the  other  party  and  stated  to  him  the  terms  of  the  judgment, 
whereupon  the  loser  said,  'T  do  it,  indeed  I  do  it,  I  do  it." 
What  process  followed  in  case  of  failure  to  perform  is  not 
clear. 

In  criminal  cases  the  governor  preferred  the  accusation  as 
plaintiff,  and  the  defendant  then  answered  to  it,  thereupon 
the  court  seems  to  have  filled  the  place  substantially  of  a  jury 
and  found  the  prisoner  guilty  or  not  guilty,  this  finding  was 
then  forwarded  to  the  Pharaoh,  who  pronounced  sentence. 

That  the  Egyptians  had  written  laws  there  seems  no  reason- 
able doubt,  and  it  was  claimed  that  they  were  composed  by 
Thoth,  the  god  of  wisdom.  The  ancient  law  books  have  not 
been  preserved  and  their  contents  come  down  to  us  only  in 
fragments.  However  complete  the  written  laws  may  have 
been,  they  do  not  appear  to  have  restrained  the  kings  who 
chose  to  override  them,  yet  respect  for  the  forms  of  law  seems 
to  have  had  quite  a  firm  hold.  Thus  Pepy,  in  the  Sixth  Dy- 
nasty, established  a  special  court  to  inquire  into  the  acts  of 
some  of  his  courtiers,  and  Ramses  III  created  a  special  court 
to  try  members  of  his  household,  who  had  conspired  against 
him.  The  record  of  the  court  of  the  proceedings  against  one 
of  the  conspirators  is  a  model  of  brevity. 


EGYPT  133 

"Penture  formerly  bore  another  name.  He  was  brought 
before  the  court,  because  he  had  joined  with  his  mother  Tey, 
when  she  conspired  with  the  women  of  the  harem,  and  be- 
cause he  acted  with  hostihty  against  his  lord.  He  was 
brought  before  the  vassals  that  they  might  question  him. 
They  found  him  guilty,  they  dismissed  him  to  his  house;  he 
took  his  own  life."  Before  this  investigation  was  closed  an 
incident  occurred,  which  reflects  severely  on  the  special  court 
organized  for  the  investigation.  It  was  discovered  that  the 
accused  women  of  the  harem  had  sought  out  three  members 
of  the  commission  and,  with  them  and  Pai'es,  the  chief  culprit, 
had  "made  a  beer  house,"  that  is,  held  a  revel.  But  they  also 
were  apprehended,  and  ''their  punishment  was  fulfilled  by 
the  cutting  off  of  their  noses  and  ears." 

While  the  power  of  Egypt  continued  to  be  great,  it  was 
not  extended  after  Ramses  II.  During  the  Twenty-fifth  Dy- 
nasty Egypt  was  ruled  by  Ethiopian  kings,  who  however  were 
not  strangers  to  Egyptian  civilization,  if  indeed  they  were  not 
of  Egyptian  blood.  At  intervals  after  the  time  of  Ramses 
there  were  wars  with  the  Assyrians  with  varying  success,  till  in 
the  year  662  B.C.  Egypt  became  an  Assyrian  province.  Eight 
years  later,  however,  with  the  aid  of  Greek  mercenaries  they 
were  driven  out.  Psammetichus  founded  the  Twenty-sixth 
Dynasty,  which  endured  a  little  more  than  a  century.  During 
this  period  there  was  much  intercourse  with  the  Greeks. 

In  525  B.C.  Cambyses  invaded  Egypt  and  reduced  it  to  a 
Persian  province.  In  the  reign  of  Artaxerxes  the  Egyptians 
revolted  and  were  aided  by  the  Athenians,  but  without  suc- 
cess. About  411  B.C.  another  revolt  proved  successful  and 
Egypt  remained  an  independent  kingdom  till  about  343  B.C. 
when  it  was  again  overrun  by  the  Persians,  who  maintained 
their  ascendency  till  Alexander's  conquest.  Though  under  the 
Ptolemies  Egypt  was  again  an  independent  kingdom,  it  was 
under  Greek  rulership.  When  the  Romans  came  the  ruler- 
ship  passed  into  their  hands,  and  since  their  time  there  has 
been  no  such  nation  as  Egypt.  Though  the  land,  the  river 
and  people  are  to  all  appearances  substantially  the  same,  the 
spirit  is  wanting,  and  Egypt  has  been  dead  for  more  than  two 


134  EVOLUTIO'N  OF  GOVERNMENTS  AND  LAWS 

thousand  years.  Indeed  the  pecuHar  civilization,  which  still 
astonishes  the  world  by  its  enduring  monuments,  can  hardly 
be  said  to  have  existed  in  full  vigor  much  later  than  the  twelfth 
century  B.C. 

With  the  rise  of  the  Asiatic  and  European  nations,  the  mili- 
tary spirit  of  the  Egyptians  developed  for  a  time,  and  their 
power  was  extended  in  all  directions,  yet  though  the  Greeks 
borrowed  their  arts  and  their  learning,  and  the  light  of  their 
ancient  civilization  spread  into  Europe  and  Asia  Minor,  they 
planted  no  colonies  which  presented  new  and  advancing  types 
of  the  mother  country.  Nor  to  this  day  has  the  civilization 
peculiar  to  any  other  country  taken  firm  root  in  Egypt.  To  all 
appearances  the  fellah  of  today  is  very  nearly  what  his  ancestor 
of  three  thousand  years  ago  was,  but  the  ruling  spirits,  who 
planned  the  great  works  and  ordered  the  affairs  of  Egypt, 
are  no  more.  The  peasant  serf  is  there,  oppressed  through 
taxation  as  severely  as  his  ancestors  were  under  the  Pharaohs. 
He  has  learned  to  submit  without  resistance  to  the  burdens 
imposed  by  foreign  masters,  as  his  forefathers  submitted  to 
the  orders  of  Cheops  in  building  a  pyramid.  Unlike  the  Chi- 
nese, the  Egyptians  have  never  been  able  to  impose  the  spirit 
of  their  civilization  on  their  conquerors,  nor  on  the  other  hand 
have  the  conquerors  been  able  to  imbue  new  life  into  their 
subjects  and  by  education  develop  a  new  civilization.  The 
greatest  marvel  is  that  with  the  constant  influx  of  Europeans 
and  Asiatics  into  the  rich  valley,  the  type  of  man  dwelling 
there  has  been  modified  to  so  slight  a  degree.  The  valley  of 
the  lower  Nile  is  the  tomb  of  a  once  great  people,  and  the 
toiling  peasants  of  today  are  hardly  better  representatives  of 
the  ancient  spirit  than  the  mummies,  which  have  been  pre- 
served with  so  much  care  through  the  long  centuries.  Since 
the  Greek  conquest  the  government  and  laws  of  Egypt  have 
been  such  as  a  foreign  ruler  has  seen  fit  to  impose. 

Authorities 

J.  Gardner  Wilkinson:     The  Manners  and  Customs  of  the 

Ancient  Egyptians. 
Adolph  Erman :    Life  in  Ancient  Egypt. 


EGYPT  135 


George  Rawlinson :  Ancient  Egypt. 

J.  P.  Mahaffy:     Empire  of  the  Ptolemies. 

W.  M.  F.  Petrie :     A  History  of  Egypt. 

James  H.  Brestead :  Ancient  Records  of  Egypt. 

James  Baikie:    The  Glory  of  the  Pharaohs. 

Herodotus. 


CHAPTER  VII 

Chaldea,  Babylonia,  Judea  and  Persia 

While  only  a  small  part  of  the  people  of  Europe  trace  their 
descent  from  inhabitants  of  the  territory  in  Asia  now  domi- 
nated by  the  Turks,  religious  teachings  have  cS.used  them  to 
regard  some  spot  in  or  near  this  territory  as  the  earliest  home, 
not  only  of  their  own  progenitors,  but  also  of  the  whole  hu- 
man race.  Egyptian  civilization  had  its  influence  on  Greeks 
and  Romans,  yet  it  has  been  far  less  regarded  than  that  of 
the  early  people  of  the  valleys  of  the  Euphrates  and  Tigris 
and  the  region  bordering  on  the  eastern  end  of  the  Mediter- 
ranean. It  is  impossible  to  accurately  measure  the  extent  to 
which  the  religion,  morals,  laws  and  governments  now  exist- 
ing, not  only  throughout  Europe  but  wherever  Europeans 
dominate,  have  been  moulded  by  the  lessons  transmitted  to 
us  from  those  people.  Comparative  philology  teaches  the 
kinship  of  people  long  supposed  to  be  altogether  foreign  to 
each  other,  and  the  Persians,  Brahmans  of  India,  Germans 
and  allied  people  of  Europe  are  all  assigned  to  one  race. 
Nevertheless  the  influence  of  the  civilization  of  ancient  Chal- 
dea, Babylonia,  Persia,  Media,  Assyria,  Palestine,  Phoenicia 
and  Greek  Asia  has  not  descended  to  us  with  the  blood  of 
ancestors  but  mainly  by  example  and  teachings.  The  Biblical 
account  of  creation  fills  a  space  which  substantially  all  people 
fill  with  fanciful  and  romantic  accounts  of  a  beginning.  Be- 
lief in  a  particular  account  usually  depends  on  the  educational 
influences  ta  which  the  individual  is  subjected.  Records 
reaching  back  to  the  origin  of  any  race  of  people  are  of  ne- 
cessity wholly  lacking. 

The  earliest  clear  evidence  of  man  and  his  works  in  the 
regions  named  is  derived  from  the  ruins  of  ancient  cities. 
The  oldest  of  these  of  which  we  have  knowledge  are  of  the 
Chaldeans,  who  occupied  the  lower  valley  of  the  Euphrates 

136 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  137 

and  Tigris  and  neighboring  country.  According  to  the  Bible, 
the  IsraeHtes  derived  their  origin  from  the  city  of  Ur  in 
Chaldea.  "And  Terah  took  Abram  his  son  and  Lot  the  son 
of  Haran  his  son's  son  and  Sarai  his  daughter-in-law,  his 
son  Abram's  wife,  and  they  went  forth  with  them  from  Ur 
of  the  Chaldees  to  go  unto  the  land  of  Canaan,  and  they  came 
unto  Haran  and  dwelt  there". ^ 

The  first  people  of  whom  any  accounts  are  attainable,  were 
familiar  with  the  leading  mechanical  arts,  the  use  of  money, 
the  cultivation  of  the  soil,  the  use  of  domestic  animals  and 
the  art  of  writing.  As  in  Egypt  formal  written  contracts 
were  common  and  are  found  on  the  clay  tablets  disclosed  by 
recent  excavations.  Abraham  bought  land  and  paid  for  it 
in  silver.  There  were  cities  and  villages,  merchants  and 
traders  as  well  as  hunters,  herdsmen  and  husbandmen.  How 
much  or  what  part  of  their  arts,  if  any,  were  borrowed  is 
not  known.  The  earliest  records  introduce  us  to  the  land  of 
Shinar  with  its  cities  of  Babel,  Erech,  Accad  and  Calneh  and 
out  of  this  country  went  forth  Asshur  and  builded  Nineveh. 

From  the  earliest  times  throughout  the  whole  region  we 
are  considering,  with  some  exceptions  hereafter  noticed,  the 
character  of  the  governments,  of  which  we  have  historic  ac- 
count, was  military  despotism  without  check  or  limitation  on 
the  power  of  the  kings.  Nothing  can  be  more  dreary  than 
the  recital  of  the  rise  and  fall  of  successive  dynasties,  always 
tending  to  reproduce  the  same  evils.  Through  the  ancient 
tablets  and  cylinders,  the  Bible  and  the  writings  of  historians, 
we  are  informed  of  the  nam.es  and  the  military  feats  of  many 
rulers  styled  successively,  Chaldees,  Babylonians,  Assyrians, 
Medes,  Persians,  Parthians,  Scythians,  Bactrians,  Arabs, 
Turks  and  Tartars.  With  all  of  them  the  fundamental  idea 
of  government  has  been  similar  if  not  identical,  paternal 
kingly  power.  While  this  is  clearly  apparent,  the  structure 
of  society  at  different  periods  has  undoubtedly  passed  through 
many  changes  and  modifications.  These,  owing  to  the  vanity 
of  kings  and  the  lack  of  independent  historians,  are  difficult 
to  trace.  The  influence  of  the  priesthood  and  of  the  religious 
*  Genesis  XI-31. 


138  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

beliefs  of  the  people  has  always  been  very  great,  and  it  is  to 
this  portion  of  the  earth  and  neighboring  portions  of  Asia, 
that  we  look  as  the  birthplace  of  all  the  great  religious  sys- 
tems, which  have  so  j)rofoundly  impressed  mankind,  and 
which  are  now  taught  throughout  the  world.  Moses,  Zoro- 
aster, Buddha,  Christ  and  Mohammed  have  successively 
taught  lessons  which  are  accepted  by  generation  after  gener- 
ation as  the  direct  and  authoritative  expression  of  divine 
truth.  The  profound  influence  of  these  various  teachings,  not 
only  on  private  morals  but  on  governments,  human  laws,  cus- 
toms and  the  structure  of  society,  is  to  be  noticed  everywhere. 
In  the  earliest  times  of  which  we  have  accounts,  we  find  the 
people  prone  to  have  a  special  god  or  gods  for  each  tribe  or 
nation  which  gained  a  well  defined  status  as  such.  The  early 
Hebrews  did  not  deny  the  existence  of  other  gods  besides 
Jehovah,  but  maintained  his  superiority.  The  Old  Testament 
mentions  numerous  gods  of  the  people  with  whom  the  Israel- 
ites contended,  as  really  existing,  but  unworthy  to  be  fol- 
lowed. The  people  were  taught  to  be  faithful  to  their  own 
god.  It  is  impossible  to  assign  a  date  for  the  earliest  general 
adoption  of  a  belief  in  a  single  god,  not  only  supreme  in 
power  but  without  rival  or  participant  in  authority.  This 
singleness  of  spiritual  power  accorded  with  the  human  des- 
potisms, which  have  flourished  in  that  region  and  contrasts 
with  the  sprightly  pantheon  of  the  Greeks,  who  were  experi- 
mentalists and  jealous  of  unrestrained  authority.  With  an 
absolute  despot  at  the  head  of  the  government,  the  distribu- 
tion of  inferior  and  local  authority  was  on  the  same  princi- 
ple. Wherever  the  king  delegated  his  power  to  a  satrap  of 
a  district,  he  ruled  as  a  despot,  accountable  only  to  the  king. 
The  general  purpose  of  all  the  diflferent  rulers,  of  whatever 
particular  nation  they  chanced  to  come,  in  extending  their 
dominions,  was  to  collect  tribute.  There  seems  to  have  been 
very  little  disposition  to  interfere  with  the  modes  of  life  of 
the  people  or  the  local  governments,  so  long  as  the  tribute  was 
paid.  Egyptian  conquest  in  Asia  merely  meant  tribute  from 
Asia  to  the  Pharaoh,  and  when  Egypt  became  subject  to  the 
Assyrians,  and  afterward  the  Persians,  Egypt  paid  tribute  to 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  139 

the  king.  The  taxes  were  collected  by  the  local  authorities, 
and  the  satrap  accounted  to  the  king  for  the  full  sum  charged 
to  his  districts.  Some  things  relating  to  the  primary  or- 
ganization of  society  are  known,  polygamy  and  slavery  were 
everywhere  and  at  all  times  allowed.  Surplus  males  were 
consumed  in  wars  or  converted  into  eunuchs  for '  domestic 
service.  The  families  and  dependents  of  the  rich  were  very 
numerous.  Abraham's  household  as  described  in  the  Bible 
is  doubtless  typical  of  ancient  as  of  modern  patriarchal  fami- 
lies. It  is  not  to  be  understood,  however,  that  all  the  people 
were  included  as  members  of  such  establishments.  Babylon 
and  Nineveh  were  very  great  cities.  In  order  to  maintain 
their  vast  multitudes  of  people,  agriculture  was  carried  on 
with  great  industry  and  success.  Manufacturing  flourished, 
and  trade  was  extended  to  distant  lands.  The  descriptions 
we  have  of  the  people  of  Babylon  indicate  that  it  had  a  vast 
combination  of  good  and  evil,  like  every  other  great  city. 
That  the  people  were  industrious,  skillful  and  intelligent  is 
abundantly  proved  by  history  and  the  ruins  still  remaining. 
That  they  were  fond  of  luxurious  living  and  addicted  to  many 
vices  hardly  differentiates  them  from  the  dwellers  in  modern 
cities,  yet  some  of  their  customs  certainly  appear  most 
abominable. 

The  recent  discovery  of  the  Code  of  Hammurabi  affords 
us  a  copy  of  the  written  law  of  Babylon  promulgated  about 
2250  years  B.C.  (A  full  summary  of  its  provisions  is  given 
in  the  Appendix.)  There  is  no  better  index  of  the  state  of  the 
civilization  of  a  people  than  the  code  of  laws  under  which 
they  live.  It  indicates  their  industrial  and  business  activities, 
their  vices,  their  superstitions  and  their  views  of  social  duty. 
How  long  this  code  remained  in  force  we  are  not  informed. 
It  was  probably  1800  years  later  when  Herodotus  visited 
Babylon  and  many  changes  had  taken  place. 

He  tells  us  that  once  in  each  year  in  each  village  the  maid- 
ens of  age  to  marry  were  collected  all  together  in  one  place, 
while  the  men  stood  around  them  in  a  circle.  The  women 
were  then  sold  for  wives  separately  to  the  highest  bidder. 
The  rich  Babylonians  had  to  bid  against  each  other  for  the 


140  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

favorite  ones,  each  going  to  the  highest  bidder.  When  all 
the  beauties  were  sold  and  the  men  ceased  to  bid,  the  ugly 
ones  were  sold  to  those  who  would  take  them  with  the  least 
marriage  portion,  which  was  made  up  from  the  prices  re- 
ceived from  the  sale  of  the  loveliest.  He  mentions  this  as  an 
excellent '  custom,  but  says  it  had  fallen  into  disuse  in  his 
time,  and  that  instead,  the  poor  of  the  common  people  raised 
their  daughters  to  be  courtesans.  This  he  attributes  to  the 
oppression  of  the  rulers.  He  relates  what  he  terms  a  most 
shameful  custom  connected  with  the  worship  of  the  Babylon- 
ian Venus.  "Every  woman  born  in  the  country  must  once 
in  her  life  go  and  sit  down  in  the  precinct  of  Venus  and 
there  consort  with  a  stranger."  Seated  in  the  enclosure  of 
the  temple  with  wreaths  of  strings  about  her  head  she  must 
wait  till  a  stranger  throws  her  a  coin  and  says  ''The  goddess 
Mylitta  prosper  thee."  She  must  then  go  with  him  whoever 
he  be.  He  adds,  that  when  this  religious  rite  has  been  per- 
formed, no  gift  however  great  will  prevail  with  her.  This 
hardly  seems  a  fair  statement  after  reading  what  is  said  of 
the  prevalence  of  prostitution. 

It  seems  reasonably  certain  that  public  morals  were  low 
at  and  after  the  time  of  which  Herodotus  wrote,  and  very 
probable  that  they  were  never  high.  The  Old  Testament  is 
filled  with  narrations  of  the  vile  customs  of  the  early  Israelites 
as  well  as  of  the  people  with  whom  they  came  in  contact,  of 
whom  apparently  the  Egyptians  were  the  best,  yet  pure  do- 
mestic life  was  not  wholly  unknown.  Away  from  the  cities 
and  perhaps  also  within  them  the  village  system  prevailed. 
The  people  lived  under  great  diversity  of  conditions. 

Xenophon  describes  an  Armenian  village  with  houses  un- 
derground entered  by  a  well,  with  passage  into  them  for  their 
cattle,  goats,  sheep  and  fowls.  There  was  a  head  man  of  the 
village.  Seventeen  colts  bred  as  a  tribute  for  the  king,  and 
provisions  in  plenty  and  considerable  variety  were  found. 
In  his  march  from  the  scene  of  the  battle  in  which  Cyrus  was 
killed  to  Colchis,  Xenophon  mentions  the  villages  of  the 
Medes,  Carducians  and  Armenians,  but  nowhere  isolated 
dwellings.     The  Persians  had  some  idea  of  established  law 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  141 

beyond  mere  custom,  and  of  the  steady  adherence  to  fixed 
rules  for  the*  determination  of  rights.  Their  laws  were  pro- 
mulgated by  the  king  recorded  by  scribes  and  proclaimed 
throughout  the  empire.  There  were  judges  appointed  by  the 
king.  Herodotus  says  that  Cambyses,  wishing  to  marry  his 
sister,  a  thing  contrary  to  Persian  custom, 

"Called  together  the  regal  judges  and  put  it  to  them 
'whether  there  was  any  law  which  allowed  a  brother,  if  he 
wished,  to  marry  his  sister.'  Now  the  royal  judges  are  certain 
picked  men  among  the  Persians,  who  hold  their  office  for  life, 
cr  until  they  are  found  guilty  of  some  misconduct.  By  them 
justice  is  administered  in  Persia  and  they  are  the  interpreters 
of  the  old  laws,  all  disputes  being  referred  to  their  decision. 
When  Cambyses  therefore  put  this  question  to  these  judges, 
they  gave  him  an  answer  which  was  at  once  true  and  safe, 
"they  did  not  find  any  law,"  they  said,  "allowing  a  brother  to 
take  his  sister  to  wife,  but  they  found  a  law  that  the  king  of 
the  Persians  might  do  whatever  he  pleased." 

While  the  Persian  system  was  loose  and  imposed  but  little 
restraint  on  the  satraps,  either  in  the  exercise  of  their  author- 
ity over  the  people  under  them  or  in  organizing  a  revolt,  there 
were  some  regulations  tending  to  efficiency  and  stability  of 
the  government.  Royal  commissioners  were  sometimes  sent 
to  inspect  the  workings  of  the  government  throughout  the 
empire,  and  a  system  of  posts  was  maintained  by  which  dis- 
patches were  forwarded  rapidly.  The  garrisons  in  the  cita- 
dels, as  well  as  the  army  in  general,  were  under  the  command 
of  officers  appointed  by  the  king  and  not  subject  to  the  sat- 
raps. As  all  histories  deal  so  much  with  wars  and  so  little 
with  peaceful  conditions,  we  have  to  infer  what  took  place 
in  times  of  peace  from  the  conditions  described  during  times 
of  war.  In  the  perspective  war  occupies  a  greatly  exaggerated 
space  and  creates  the  impression  that  the  people  were  engaged 
in  little  else  than  fighting,  when  in  fact  peace  was  the  rule. 
The  earliest  Babylonians  were  temple  builders  and  devoted  to 
their  gods.  Strong  religious  tendencies  have  ever  been  char- 
acteristic of  the  people  of  all  the  portion  of  Asia  of  which 
\ye  are  now  treating.    The  idea  of  government  seems  to  have 


142  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

persistently  adhered  to  a  single  unlimited  monarch.  With 
the  grosser  forms  of  religious  worship  and  with  Ihe  corrupted 
organizations  which  profess  the  purer  ones,  form  and  cere- 
monial always  fill  a  great  space.  These  forms,  to  be  impres- 
sive, must  be  marked  out  and  defined  by  fixed  rules,  to  which 
the  people  become  accustomed.  Revenues  to  maintain  the 
priesthood  and  the  temples  must  be  derived  by  a  system  of 
tributes,  paid  really  to  the  priests,  but  exacted  in  the  name 
of  the  deities.  The  alliance  between  the  sovereign  and  the 
priesthood  was  necessarily  close  and,  during  much  of  the 
time,  the  king  was  the  spiritual  as  well  as  the  temporal  head. 
In  ancient  Assyria  the  laws  were  promulgated  in  the  name 
of  Asshur,  the  head  of  their  pantheon,  as  the  Jews  used  the 
name  of  Jehovah  to  give  sanction  to  theirs.  The  temples  of 
the  Assyrian  and  Babylonian  gods  required  the  attendance  of 
a  numerous  priesthood,  withdrawn  partly  and  often  entirely 
both  from  participation  in  military  operations  and  ordinary 
callings.  The  system  of  irrigation  by  the  aid  of  artificial 
canals,  under  which  the  valleys  of  the  Tigris  and  Euphrates 
were  brought  to  a  high  state  of  cultivation,  evidences  settled 
social  order  for  a  considerable  period  prior  to  the  time  of 
Hammurabi.  The  cities  themselves  could  only  come  into 
existence  under  conditions  of  order  and  security  to  person 
and  property. 

Recent  researches  have  thrown  much  light  on  ancient  Baby- 
lonian institutions,  and  many  ancient  tablets  on  which  were 
written  deeds  and  contracts  of  various  kinds  have  been  ex- 
humed and  interpreted.  Judicial  functions  were  exercised  by 
the  priesthood,  who  also  acted  in  the  capacity  of  notaries 
and  witnesses  of  written  contracts,  and  the  parties  took  an 
oath  to  perform  the  contract,  the  whole  being  attested  by  the 
priest  and  other  witnesses.  A  deed  to  property  seems  to 
have  been  generally  treated  as  a  mortgage,  which  could  be 
discharged  on  repayment  of  the  purchase  price,  unless  the 
vendor  expressly  renounced  the  right  to  redeem,  in  the  deed. 
Even  this  did  not  cut  off  the  right  of  his  heir  to  recover  the 
land  by  paying  back  the  price.  Sometimes  the  heirs  joined 
in  the  deed  in  order  to  cut  off  the  right  of  redemption.     Mort- 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  143 

gages  were  familiar,  the  earliest  form  being  that  in  which 
the  use  of  land  was  transferred  to  the  lender  for  the  use  of 
the  money,  rent  being  set  off  against  interest.  When  the 
money  was  repaid  the  land  was  returned.  Mortgages  of  lands 
and  chattels  were  common.  The  business  of  banking  was 
well  developed  and  seems  to  have  been  largely  in  the  hands  of 
the  priesthood.  Interest  was  allowed  and  bottomy  bonds, 
bearing  a  high  rate  but  under  which  the  lender  got  nothing 
in  case  of  loss  of  the  property  by  shipwreck,  were  common, 
as  also  were  contracts  of  hiring,  lease,  partnership  and  other 
business  transactions,  and  were  executed  with  that  freedom 
which  always  obtains  in  a  great  commercial  city. 

In  religion  these  people  were  polytheists,  and  their  pan- 
theon was  as  well  stocked  as  that  of  the  imaginative  Greeks. 
The  personal  qualities  attributed  to  their  several  gods  were 
so  similar  in  many  instances  as  to  suggest  identity.  The 
genius  for  city  building  moved  from  the  valleys  of  these 
rivers  to  the  countries  bordering  on  the  Euxine  and  Mediter- 
ranean seas  and  afterward  spread  wherever  the  Greeks  be- 
came dominant.  But,  so  far  as  we  know,  the  genius  for 
popular  government  in  cities  was  never  developed  in  Asia, 
except  in  the  Greek  cities  near  the  coast.  Among  the  rural 
population,  dwelling  in  their  villages,  tilling  the  soil  and  rear- 
ing domestic  animals,  there  was  a  degree  of  independence. 
Herodotus  speaks  of  the  Medes  revolting  from  the  Assyrians 
and  gaining  their  freedom,  after  having  been  subject  to  the 
latter  for  520  years,  and  then  tells  how  Duoces  by  playing 
the  part  of  an  upright  judge  succeeded  in  gaining  kingly 
power.  Herodotus  saw  through  Greek  eyes.  Though  Medes 
and  Persians  were  fond  of  liberty  perhaps  in  their  early 
history,  they  had  no  genius  for  the  establishment  of  any  form' 
of  government  other  than  that  of  an  arbitrary  despotism. 

JUDEA 

The  Jews  afford  us  through  the  Bible  a  later  and  more 
complete  system  of  written  laws  than  that  of  Hammurabi. 
Some  of  it  was  similar  to  and  borrowed  from  Egypt's  older 
civilization.     Some  of  it  was  drawn  from  Babylon.     All  their 


144  EVOLUTIO-N  OF  GOVERNMENTS  AND  LAWS 

laws,  whether  prescribing  rules  of  conduct  governing  the  re- 
lations between  individuals  or  declaring  religious  duties  and 
imposing  burdens  for  the  support  of  the  priesthood,  were 
promulgated  as  divine  commands.  The  religious  veneration, 
with  which  everything  found  in  the  Hebrew  records  has  been 
regarded  by  the  Christian  world,  renders  it  difficult  to  dis- 
passionately attempt  to  separate  the  truth  of  history  from  the 
setting  of  oriental  exaggeration  in  which  it  is  contained. 
When  or  by  whom  the  writings  passing  under  the  name  of 
the  books  of  Moses  were  written  is  unknown.  It  can  be  said 
however,  with  confidence,  that  all  the  Old  Testament  has  come 
down  to  us  through  the  Jewish  priesthood.  Whether  the 
regulations  to  be  found  in  the  five  books  attributed  to  Moses 
were  in  fact  promulgated  by  him  or  not,  it  is  clear  that  there 
was  a  concurrence  in  establishing  these  laws  of  both  the  tem- 
poral and  the  spiritual  head  of  the  Israelites.  The  authority 
which  the  people  recognized  was  not  Moses  nor  Aaron,  but 
the  unseen  God,  from  whom  it  was  proclaimed  that  the  com- 
mands emanated.  The  purpose  of  all  conscientious  legisla- 
tors is  to  find  and  declare  the  rules  which  tend  to  promote  the 
welfare  of  all.  Many  of  the  regulations  contained  in  the 
laws  attributed  to  Moses  would  appear  to  have  but  little  ap- 
plication to  a  wandering  horde,  such  as  the  Israelites  were  in 
their  journey  from  Egypt  to  Palestine.  It  is  not  recorded 
that  they  then  acquired  any  territory  for  the  purpose  of  per- 
manent occupancy,  yet  there  are  very  definite  laws  concerning 
real  property.  The  people  must  have  been  very  filthy  and 
immoral, ,  for  a  large  part  of  the  religious  observances  en- 
joined tend  to  cleanliness  and  orderly  conduct.  That  their 
wealth  consisted  largely  of  cattle,  sheep  and  other  live  stock 
is  evidenced  by  the  extent  of  the  regulations  concerning  such 
property.  Pigeons  seem  to  have  been  extensively  bred  and 
were  much  used  in  the  offerings. 

The  ten  commandments  are  written  as  the  words  of  God 
repeated  by  Moses.  The  first  four  relate  solely  to  matters  of 
religion,  but  are  regarded  as  authoritative  and  binding 
throughout  Christendom  today,  and  Sunday  is  observed  as  the 
Sabbath  of  his  law.     The  fifth  is  an  admonition  to  respect 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  145 

parents,  more  or  less  regarded.  The  remaining  five  are  uni- 
ersally  regarded  as  binding  moral  laws,  the  violation  of  either 
of  which  is  a  sin.  While  these  commandments  have  been 
held  of  such  high  authority  by  all  Christians,  the  other  laws 
declared  by  Moses  are  not  so  well  respected.  Slavery  even 
of  Hebrews  was  recognized. 

"If  thou  buy  an  Hebrew  servant,  six  years  he  shall  serve 
and  in  the  seventh  he  shall  go  free  for  nothing."  If  bought 
with  a  wife,  the  wife  went  free  with  him,  but  if  given  a  wife 
by  the  master,  the  wife  and  her  children  belonged  to  the 
master.  ''And  if  the  servant  shall  plainly  say  I  love  my 
master,  my  wife  and  my  -children  I  will  not  go  out  free,  then 
his  master  shall  bring  him  unto  the  judges,  he  shall  also 
bring  him  to  the  door  or  unto  the  door  post;  and  his  master 
shall  bore  his  ear  through  with  an  awl,  and  he  shall  serve 
him  forever." 

Daughters  sold  as  servants  were  not  given  their  freedom 
but,  if  taken  to  wife  by  the  master  or  his  son,  were  to  be 
treated  as  wives  and  not  sold  to  a  strange  nation.  Murder  of 
malice  was  punished  with  death,  but  a  sanctuary  was  allowed 
for  excusable  homicide.  The  law  of  domestic  relations  in- 
culcated respect  for  both  father  and  mother.  Polygamy  was 
permitted  and  in  some  instances  almost  compulsory.  Mar- 
riage was  encouraged,  and  a  newly  married  man  was  exempt 
from  going  to  war  for  a  year.  If  brethern  dwelt  together  and 
one  of  them  died  childless,  the  surviving  brother  should  marry 
the  widow  and  her  first  born  should  succeed  in  the  name  of 
the  dead  brother.  If  the  survivor  refused  to  marry  the  widow, 
she  might  call  him  before  the  elders  and  have  him  condemned, 
and  in  their  presence  she  shall  "Loose  his  shoe  from  off  his 
foot,  and  spit  in  his  face  and  shall  answer  and  say.  So  shall 
it  be  done  unto  that  man  that  will  not  build  up  his  brothers 
house." 

The  law  of  divorce  was  that,  "When  a  man  hath  taken  a 
wife  and  married  her,  and  it  come  to  pass  that  she  find  no 
favor  in  his  eyes,  because  he  hath  found  some  uncleanness  in 
her,  then  let  him  write  her  a  bill  of  divorcement  and  give  it 


146  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  her  hand  and  send  her  out  of  the  house."  She  may  then 
marry  again. ^ 

In  Numbers  chapter  v.  a  provision  is  made  for  testing  the 
faithfulness  of  a  woman  whose  husband  is  jealous  of  her, 
which  is  similar  to  and  probably  suggested  the  medieval  trials 
by  ordeal.  The  status  of  women  was  not  wholly  dissimilar 
to  that  under  the  English  common  law.  The  vows  (con- 
tracts) of  men  were  binding,  but  those  of  unmarried  daugh- 
ters might  be  annulled  by  the  fathers  and  of  married  women 
by  their  husbands  on  the  day  when  made,  otherwise  they 
should  stand.     Widows  and  divorced  women  were  bound. 

The  law  of  inheritance,  as  first  established,  seems  to  have 
recognized  the  rights  of  males  only,  but  on  the  complaint  of 
the  daughters  of  Zellophehad  it  was  amended  as  follows :  "If 
a  man  die  and  have  no  son,  then  ye  shall  cause  his  inheritance 
to  pass  unto  his  daughters.  And  if  he  have  no  daughters, 
then  ye  shall  give  his  inheritance  unto  his  brethern.  And  if 
he  have  no  brethern,  then  ye  shall  give  his  inheritance  unto 
his  father's  brethern.  And  if  his  father  have  no  brethern, 
then  ye  shall  give  his  inheritance  unto  his  kinsman  that  is  next 
to  him  of  his  family."^ 

There  was  a  settled  policy,  well  calculated  to  preserve  to 
each  family  its  inheritance  and  prevent  the  crafty  from  per- 
manently engrossing  the  land  or  chattel  property.  Every 
fiftieth  year  was  a  year  of  jubilee,  when  all  inheritances  of 
land  went  back  to  the  vendor.  A  sale  could  only  be  made 
till  the  next  jubilee,  except  in  walled  towns,  where  a  redemp- 
tion in  a  year  was  allowed.  A  similar  principle  was  thus  ap- 
plied to  chattels. 

"At  the  end  of  every  seven  years  thou  shalt  make  a  release. 
And  this  is  the  manner  of  the  release.  Everyone  that  lend- 
eth  aught  unto  his  neighbor  shall  release  it,  he  shall  not  exact 
it  of  his  neighbor  or  of  his  brother  because  it  is  called  the 
Lord's  release.     Of  a  foreigner  thou  mayest  exact  it  again. "^ 

"And  six  years  thou  shalt  sow  thy  land  and  shalt  gather  in 

^  Deut.  xxiv.  1-2. 
'  Numbers  xxvii. 
*  Deut.  XV.  1-2-3. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  147 

the  fruits  thereof.  But  the  seventh  year  thou  shalt  let  it  rest 
and  lie  still  that  the  poor  of  thy  people  may  eat:  and  what 
they  leave  the  beasts  of  the  field  shall  eat.  In  like  manner 
thou  shalt  deal  with  thy  vineyard  and  thy  oliveyard."^ 

Usury  was  strictly  forbidden  except  when  taken  from 
strangers,  and  pledges  of  raiment  must  be  returned  by  sun- 
down. For  all  manner  of  trespasses  the  parties  should  come 
before  the  judges  and  the  party  condemned  should  pay  double. 
The  protection  of  servants  against  the  cruelty  of  masters  was 
exceedingly  meager.  "And  if  a  man  smite  his  servant  or  his 
maid  with  a  rod  and  he  die  under  his  hand,  he  shall  surely  be 
punished.  Notwithstanding  if  he  continue  a  day  or  two  he 
shall  not  be  punished  for  he  is  his  money." 

If  a  man  put  out  the  eye  or  tooth  of  a  man  or  maid  servant 
he  or  she  shall  go  free.  If  an  ox  kill  a  person  the  ox  must 
be  killed,  but,  if  the  ox  has  been  wont  to  push  with  his  horn 
in  time  past,  the  owner  shall  be  put  to  death  unless  he  pays 
his  ransom.  If  the  ox  kill  a  servant,  the  owner  of  the  ox 
shall  pay  the  master  thirty  shekels  of  silver.  A  thief  must 
pay  three  for  one  for  an  ox  and  four  for  one  for  a  sheep; 
and  if  caught  in  the  act  and  killed,  no  blood  shall  be  shed 
for  him.  A  party  caught  with  stolen  property  must  pay 
double. 

The  criminal  law  was  primitive  and  merciless.  The  punish- 
ments were  death,  maiming,  beating  or  fine.  The  following 
offenses  were  punished  with  death:  Murder,  manstealing, 
cursing  father  or  mother,  adultery  (both  parties),  witchcraft, 
lying  with  a  beast,  idolatry. 

"If  thy  brother  the  son  of  thy  mother  or  thy  son  or  thy 
daughter  or  the  wife  of  thy  bosom  or  thy  friend  who  is  as 
thine  own  soul,  entice  thee  secretly  saying,  Let  us  go  and 
serve  other  gods  which  thou  hast  not  known,  thou  nor  thy 
fathers,"  thou  shalt  not  consent  "But  thou  shalt  surely  kill 
him,  thine  hand  shalt  be  first  upon  him  to  put  him  to  death 
and  afterward  the  hand  of  all  the  people."  The  father  and 
mother  of  a  "stubborn  and  rebellious  son"  might  bring  him 
before  the  elders  at  the  gate  of  the  city  and  have  him  con- 

^Exodus  xxiii,  10  and  11. 


148  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

demned  to  be  stoned  to  death.  It  hardly  seems  possible  that 
there  could  be  use  for  such  a  law. 

For  offenses  deemed  of  inferior  degree  the  lex  talionis  had 
full  sway,  and  is  nearly  identical  with  the  code  of  Hammurabi. 

''Eye  for  eye,  tooth  for  tooth,  hand  for  hand,  foot  for  foot, 
burning  for  burning,  wound  for  wound,  stripe  for  stripe." 

Very  definite  and  minute  provision  was  made  as  to  what 
might  be  eaten  and  as  to  the  manner  in  which  animals  should 
be  slaughtered  for  food  and  the  use  of  the  different  parts. 
These  were  in  part  sanitary  regulations  but  more  to  insure 
the  priests  their  living. 

''The  priests,  the  Levites  and  all  the  tribe  of  Levi  shall  have 
no  part  nor  inheritance  therein  with  Israel.  They  shall  eat 
the  offerings  of  the  Lord  made  by  fire  and  his  inheritance."^ 

By  far  the  greater  space  in  the  law  is  occupied  with  regu- 
lations relating  to  religion  and  religious  ceremonies,  and  great 
care  is  taken  to  insure  the  maintenance  and  influence  of  the 
priesthood.  All  the  books,  especially  that  of  Leviticus,  con- 
tain very  numerous  rules  relating  to  burnt  offerings,  meat 
offerings,  peace  offerings,  sin  offerings,  trespass  offermgs, 
first  fruits  and  other  offerings  from  which  the  priests  were 
supported.  The  priestly  dress  was  regulated.  The  Levites 
were  assigned  cities  (villages)  with  suburbs  for  their  cattle, 
among  which  were  six  cities  of  refuge  for  criminals,  into 
which  the  avenger  of  blood  might  not  pursue  one  guilty  of 
homicide,  unless  committed  with  premediation.  The  priest- 
hood was  the  instrumentality  mainly  relied  on  by  Moses  for 
the  maintenance  of  his  system,  which  in  this  respect  strongly 
resembled  the  Egyptian.  The  observance  of  his  laws  would 
keep  the  priests  in  close  contact  with  all  the  people  substan- 
tially all  the  time,  and  obedience  to  all  these  minute  regula- 
tions was  enjoined  as  a  religious  duty. 

Among  the  most  remarkable  provisions  in  the  laws  of 
Moses  are  those  imposing  restrictions  on  the  rulers,  and  pro- 
viding for  the  promulgation  and  perpetuation  of  a  code  of 
written  laws  by  which  the  rights  of  all  were  to  be  measured. 

•Deut.  xviii.  9. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  149 

The  people  were  permitted  to  have  kings,  Hke  as  other  na- 
tions, but  with  Hmitations  on  their  powers. 

''But  he  shall  not  multiply  horses  to  himself  nor  cause  the 
people  to  return  to  Egypt  to  the  end  that  he  should  multiply 
horses,  forasmuch  as  the  Lord  hath  said  unto  you,  Ye  shall 
henceforth  return  no  more  that  way.  Neither  shall  he  multi- 
ply wives  to  himself  that  his  heart  turn  not  away,  neither  shall 
he  greatly  multiply  silver  and  gold.  And  it  shall  be  when  he 
sitteth  upon  the  throne  of  his  kingdom,  that  he  shall  write  him 
a  copy  of  this  law  in  a  book,  out  of  that  which  is  before  the 
priests,  the  Levites.  And  it  shall  be  with  him,  and  he  shall 
read  therein  all  the  days  of  his  life."'^ 

''Judges  and  officers  shalt  thou  make  thee  in  all  thy  gates, 
which  the  Lord  thy  God  giveth  thee  throughout  thy  tribes, 
and  they  shall  judge  the  people  with  just  judgment.  Thou 
shalt  not  wrest  judgment,  thou  shalt  not  respect  persons, 
neither  take  a  gift,  for  a  gift  doth  blind  the  eyes  of  the  wise 
and  pervert  the  words  of  the  righteous."^ 

Appeals  from  inferior  to  superior  courts  were  provided  for. 

"If  there  arise  a  matter  too  hard  for  thee  in  judgment,  be- 
tween blood  and  blood,  between  plea  and  plea  and  between 
stroke  and  stroke,  being  matter  of  controversy  within  thy 
gates,  then  shalt  thou  arise  and  get  thee  up  into  the  place 
which  the  Lord  thy  God  shall  choose.  And  thou  shalt  come 
unto  the  priests,  the  LeVites,  and  unto  the  judge  that  shall  be 
in  those  days  and  inquire,  and  they  shall  shew  thee  the  sen- 
tence of  judgment.  And  thou  shalt  do  according  to  the 
sentence  which  they  of  that  place  which  the  Lord  shall  choose 
shall  shew  thee."^  In  the  determination  of  criminal  causes 
the  rule  concerning  the  amount  of  evidence  required  was, 
"One  witness  shall  not  rise  up  against  a  man  for  any  iniquity 
or  for  any  sin  that  he  sinneth;  at  the  mouth  of  two  wit- 
nesses or  at  the  mouth  of  three  witnesses  shall  the  matter  be 
established.''^^ 

Although  the  date  of  Moses'  death  is  assigned  to  about  the 
year  1450  B.C.  and  although  the  little  nation  for  which  he 

^  Deut.  xvii.  16  and  19.  ^  Deut.  xxi.  18-19. 

"Deut.  xvii.  8-9-10.  *"  Deut.  xix.   15. 


ISO  EVOLUTION  OF  GOVBRNlVrENTS  AND  LAWS 

framed  his  laws  was  often  at  the  mercy  of  its  foes,  in  cap- 
tivity and  finally  scattered  over  the  face  of  the  earth  as  out- 
casts, his  laws  are  to  be  found  at  this  day  in  the  households 
of  millions  of  alien  people  in  apparently  complete  form.  This 
seems  in  some  measure  due  to  the  provisions  made  by  him 
for  their  preservation,  but  more  to  their  religious  sanction 
and  the  promulgation  of  the  laws  as  the  word  of  the  God 
who  watched  over  the  Israelites  as  his  chosen  people  and  yet 
more  to  the  spread  of  Christianity.  The  people  were  com- 
manded by  Moses  after  they  should  pass  over  Jordan  to  set 
up  great  stones  and  plaster  them  and  "write  upon  the  stones 
all  the  words  of  this  law  very  plainly."  Blessings  were  called 
down  on  all  who  obeyed  and  curses  on  those  who  disobeyed. 
*'And  Moses  wrote  this  law  and  delivered  it  unto  the  priests, 
the  sons  of  Levi,  which  bore  the  ark  of  the  covenant  of  the 
Lord,  and  unto  all  the  elders  of  Israel  and  Moses  commanded 
them  saying.  At  the  end  of  every  seven  years  in  the  solemnity 
of  the  year  of  release  in  the  feast  of  the  tabernacle,  when  all 
Israel  is  come  to  appear  before  the  Lord  thy  God  in  the  place 
which  he  shall  choose,  thou  shalt  read  this  law  before  all 
Israel  in  their  hearing."^^ 

In  the  early  days  authority  was  exercised  by  the  priests,  and 
the  general  in  time  of  war,  but  there  was  no  king. 

"In  those  days  there  was  no  king  in  Israel,  every  man  did 
that  which  was  right  in  his  own  eyes."^^ 

(B.C.  1400.)  Afterward  when  Samuel  was  chief  priest  the 
people  wanted  a  king. 

"Then  all  the  elders  of  Israel  gathered  themselves  together 
and  came  to  Samuel  unto  Ramah,  and  said  unto  him,  Be- 
hold thou  art  old  and  thy  sons  walk  not  in  thy  ways,  now 
make  us  a  king  to  judge  us  like  all  the  nations.  But  the  thing 
displeased  Samuel."  He  told  them  the  evil  consequences  of 
having  a  king  but  they  insisted. ^^ 

Saul  was  then  made  king.  "And  all  the  people  shouted  and 
said  God  save  the  king."  Saul's  authority  was  not  fully  rec- 
ognized however,  and  it  was  not  till  David  was  anointed  that 

"Deut.  xxxi.  9-I0-II.       "Judges  xxi.  25.  "i  Samuel  viii. 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  151 

the  kingly  authority  was  estabHshed.  Under  his  son  Solomon 
the  nation  attained  its  maximum  of  wealth  and  power,  which, 
as  compared  with  that  of  either  Egypt,  Babylon,  Assyria  or 
Persia  at  its  best,  was  not  great.  Though  the  written  law  of 
Moses  seems  to  have  been  preserved  intact,  it  does  not  ap- 
pear to  have  ever  been  very  rigidly  observed,  nor  to  have 
been  eminently  successful  as  a  religious  establishment.  Even 
Solomon,  the  model  of  all  Hebrew  Kings,  violated  the  law  by 
greatly  multiplying  his  riches,  and  by  taking  to  himself  a 
vast  number  of  wives  (700),  and  concubines  (300).  In  the 
accumulation  of  his  harem  he  did  not  confine  himself  to  selec- 
tions from  the  twelve  tribes,  but  gathered  from  among  the 
heathens,  and  as  a  result  became  tolerant  of  all  the  gods  and 
erected  places  for  the  worship  of  other  Gods  besides  Jehovah. 
Throughout  much  of  the  Old  Testament  there  is  constant 
recognition  of  the  existence  of  Baal  and  numerous  other  gods, 
but  Jehovah  was  the  special  god  of  Israel,  from  whom  alone 
they  might  hope  for  help.  The  Bible  records  many  times 
when  the  people  generally  abandoned  the  worship  of  God  and 
adopted  that  of  the  gods  of  other  people.  The  lesson  con- 
stantly taught  is  that  this  was  always  followed  by  disaster, 
and  that  prosperity  only  came  through  strict  adherence  to  the 
national  worship.  The  history  of  the  Israelites  from  the 
time  of  Moses  to  the  days  of  Christ,  is  an  alternation  of  peace 
and  war,  adherence  to  the  Mosaic  law  and  abandonment  of 
it,  success  and  adversity,  independence  and  subjection  to  for- 
eign power,  corresponding  in  all  material  respects  to  that  of 
surrounding  nations.  In  morals  they  do  not  seem  to  have 
been  materially  above  or  below  the  general  average  of  their 
neighbors.  In  power  and  material  development  they  were 
quite  insignificant  as  compared  with  the  Chaldeans,  Babylon- 
ians, Assyrians,  Persians  or  Egyptians.  Jerusalem  at  its 
best  was  but  a  village  as  compared  with  Babylon  or  Nineveh. 
Yet  the  influence  of  this  small  nation  on  succeeding  genera- 
tions has  vastly  exceeded  that  of  all  the  others  combined. 
This  influence  is  due,  first  to  the  preservation  of  the  Mosaic 
law  and,  second  but  far  more,  to  the  Christian  teachings  of 
the  new  law  of  love  and  mutual  help. 


152  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

We  regard  the  present  as  an  age  of  invention  in  Europe  and 
America.  It  is  not  the  first  however.  While  we  cannot  defi- 
nitely fix  time  or  place  nor  speak  on  the  subject  with  absolute 
certainty,  all  we  do  know  indicates  that  there  was,  before  the 
days  of  Moses,  a  period  of  great  mental  activity  and  invention. 
The  foundations  of  modern  achievements  seem  to  have  been 
laid  somewhere  in  or  near  the  regions  treated  of  in  this 
chapter.  The  art  of  smelting  iron,  copper  and  many  other 
metals  was  carried  to  an  advanced  state  of  perfection.  Archi- 
tecture produced  immense  structures  in  which  the  beautiful 
sought  expression  in  accordance  with  the  taste  of  the  times. 
The  art  of  weaving  fabrics  was  developed.  Hydraulic  en- 
gineering achieved  triumphs  little  if  any  short  of  those  boasted 
by  modern  engineers,  and  the  rich  country  of  the  Tigris  and 
Euphrates,  which  now  lies  desolate  from  lack  of  the  ancient 
system  by  which  the  waters  of  the  rivers  were  utilized,  was 
them  a  vast  garden,  rivaling  if  not  leading  in  productiveness 
the  most  favored  portions  of  the  globe  in  any  age.  But  more 
valuable  than  all  these  was  the  invention  of  letters,  since 
changed  in  form  and  number  by  different  people,  yet  afford- 
ing the  foundation  of  all  written  language  in  the  western 
world.  Of  all  the  literary  people  the  Chinese  alone  can  claim 
the  invention  of  another  separate  and  complete  system  of 
written  characters.  Whether  any  of  these  inventions  were 
made  under  the  despotic  governments  of  which  history  in- 
forms us  cannot  be  told.  Letters  do  not  record  the  time, 
place  or  manner  of  their  own  creation. 

It  seems  strange  that  so  little  definite  history  or  description 
cf  the  government  of  the  Phoenicians  can  be  given.  They 
were  renowned  for  manufactures  and  commerce.  Their  ships 
went  to  all  ports  of  the  Mediterranean  Sea,  but  their  colonies 
were  mostly  on  the  African  side.  The  accounts  of  Carthage 
received  from  Roman  sources  are  doubtless  much  colored  by 
their  hostility. 

The  dynasty  established  as  a  sequence  of  Alexander's  con- 
quest did  not  long  retain  marked  Greek  characteristics,  but 
soon  degenerated  and  became  in  fact  a  typical  oriental  despot- 
ism.    The  Greeks  adopted  Persian  customs  rather  than  im- 


CHALDEA,  BABYLONIA,  JUDEA  AND  PERSIA  153 

posed  their  own.  There  were  Greek  cities  along  the  coasts 
where  Greek  civilization  prevailed  for  many  centuries.  Fol- 
lowing the  downfall  of  Macedonian  supremacy  came  the  Ro- 
man conquest  of  the  country  west  of  the  Euphrates.  Toward 
the  east  the  Persians  with  varying  fortunes  and  under  nu- 
merous dynasties  have  during  most  of  the  time  maintained 
their  supremacy.  But  whether  the  ruler  was  Persian,  Mede, 
Bactrian,  Turk,  Mogul  or  Musselman,  he  has  always  been  a 
despot,  sometimes  a  wellmeaning  and  sometimes  an  able  one, 
but  usually  a  cruel,  idle  voluptuary.  The  advent  of  Christ 
had  little  effect  on  the  political  conditions  of  the  country  of 
his  birth.  Not  till  the  Crusades  was  an  attempt  made  to  as- 
sert temporal  authority  there  in  his  name.  The  influence  of 
his  teachings,  though  not  wholly  wasted  in  Asia,  was  far 
less  potent  than  that  of  Mohammed,  whose  system  was  bet- 
ter suited  to  oriental  tastes  and  character. 

The  difficulty  with  all  their  systems  was  that  no  effectual 
check  was  provided  against  the  exercise  of  arbitrary  power. 
Those  who  are  inclined  to  clamor  for  speedy  justice  may  read 
of  striking  illustrations  of  it  in  the  book  of  Daniel,  where  the 
story  is  told  of  the  restributive  justice  meted  out  to  Daniel's 
accusers,  who  were  thrown  into  the  lion's  den  and  torn  to 
pieces  by  the  king's  command,  or  in  the  book  of  Esther  in 
which  is  recorded  the  hanging  of  Haman  on  the  gallows  he 
erected  for  Mordecai,  and  the  license  given  to  and  used  by 
the  Jews  by  command  of  Ahasuerus  to  slaughter  their  ene- 
mies. The  king  and  his  satraps  were  really  restrained  only 
by  their  own  feelings  or  interests  and  constantly  exercised 
arbitrarily  the  power  to  put  to  death,  often  in  cruel  ways,  and 
to  seize  the  property  of  their  subjects. 

The  theory  of  the  Persian  government  remained  despotic 
till  very  recent  times,  but  modern  influences  have  been  felt  in 
the  land  of  the  ancient  despotism.  On  August  5,  1906 
Muzaffar-ud-Din,  Shah,  issued  a  rescript  undertaking  to  form 
a  national  council — Majlis — representing  the  whole  people. 
The  Majlis  was  elected  and  opened  by  the  shah  in  person  on 
October  7,  1906.  Muzaffer  died  in  January  1907  and  his  son 
Mohammed  Ali  Mirza  on  his  accession  to  the  throne  pledged 


154  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

himself  to  support  the  constitution.  A  revolution  occasioned 
by  a  clash  between  the  shah  and  the  Majlis  resulted  in  the 
deposition  of  AH  and  the  choice  of  his  young  son  Ahmad 
Mirza.  On  November  15,  1909  a  newly  elected  MajHs  was 
opened  by  the  shah. 

The  Majlis  is  composed  of  representatives  of  the  dominant 
classes  and  numbers  162  members  (sixty  from  Teheren  and 
102  from  the  provinces).  Electors  must  be  males,  Persian 
subjects  not  less  than  twenty-five  years  old  and  of  good 
repute.  The  executive  government  is  carried  on  by  a  cabinet 
of  eight  ministers. 


CHAPTER  VIII 


Arabia 


Were  it  not  for  the  marvelous  career  and  lasting  influence 
on  a  large  portion  of  the  human  race  of  one  man  as  a  relig- 
ious teacher  and  law  giver,  Arabia  would  be  given  but  small 
space  in  this  work.  The  people  were  allied  on  one  side  with 
the  neighboring  Asiatic  population  and  classed  as  of  Semitic 
stock,  and  on  the  other  were  intermixed  with  African  blood 
of  the  Egyptian  and  Abyssinian  stocks.  Nevertheless  the 
Arab  is  of  a  type  quite  as  well  marked  as  any  of  his  neighbors 
and  has  been  so  for  untold  centuries.  Modes  of  life  and 
social  systems  appear  to  have  been  moulded  by  natural  con- 
ditions. In  Yemen,  which  has  ever  been  rich  and  fruitful, 
the  people  have  dwelt  in  settled  communities,  cultivated  the 
soil  and  maintained  a  strong  monarchical  government,  which 
is  said  to  have  lasted  2500  years  before  Mohammed,  and  to 
have  extended  its  power  over  most  of  the  south  half  of  the 
peninsula.  In  the  interior  and  desert  portions,  where  settled 
agriculture  is  impossible,  but  precarious  pasturage  affords 
sustenance  for  flocks  and  herds,  the  wandering  tent  dwelling 
Bedouins  moved  from  place  to  place  with  their  live  stock, 
recognizing  no  settled  government  beyond  their  tribal  leaders. 
Though  brought  in  contact  with  the  ancient  civilizations  of 
Egypt,  Babylonia  and  India  through  its  traders,  so  far  as 
known  Arabia  developed  and  preserved  its  own  peculiar  types. 
Our  common  system  of  expressing  numbers  by  figures  is  per- 
haps the  only  Arabic  invention  with  which  we  are  familiar, 
but  it  may  well  be  that  this  is  not  all  for  which  we  are  in- 
debted to  them,  so  meager  and  imperfect  are  the  records  of 
past  events. 

Mohammed  grew  up  under  a  tribal  system  which  recog- 
nized no  superior  authority.  Mecca,  though  a  city  of  no 
great  size  was  occupied  by  clans  having  no  common  head. 

iSS 


IS6  EVOLUTIO'N  OF  GOVERNMENTS  AND  LAWS 

The  Koraish,  by  which  general  term  the  clans  in  and  about 
Mecca  were  known,  were  traders  whose  caravans  brought 
goods  from  Syria  and  Persia,  which  were  sold  at  the  fairs 
in  Mecca.  Knowledge  of  reading  and  writing  was  general 
among  them. 

Neither  the  Abyssinian  Christians  nor  the  Persian  fire 
worshipers  had  been  able  to  subjugate  Mecca.  Mohammed's 
parents  died  during  his  early  youth  and  he  grew  up  in  ex- 
treme poverty  first  in  his  grandfather's,  and  then  his  uncle's, 
family.  At  twenty-five  he  entered  the  service  of  Khadija,  a 
wealthy  widow  for  whom  he  traveled  to  Palestine  and  Syria. 
Afterward  he  married  her.  He  became  familiar  with  the 
Hebrew  scriptures  and  traditions  and  with  the  tenets  of  the 
Christians.  To  the  many  forms  of  idolatry  which  he  found 
prevailing,  not  only  among  the  followers  of  ancient  Arabic 
faiths,  but  also  among  the  Christians  of  his  day,  he  con- 
ceived a  most  intense  aversion.  He  was  a  profound  believer 
in  the  unity  of  God.  Mohammed  laid  no  claim  to  divinity, 
not  even  to  direct  personal  communion  with  God,  but  to  hav- 
ing received  the  words  of  the  Koran  through  the  angel 
Gabriel.  He  posed  merely  as  the  apostle  of  God.  He  did 
not  profess  to  proclaim  a  new  religion,  but  merely  to  restore 
in  its  purity  the  ancient  Jewish  monotheism.  He  gave  the 
great  characters  of  the  Bible  recognition  as  prophets,  and 
while  he  denied  the  divinity  of  Christ,  his  authority  as  a 
prophet  and  teacher  is  maintained.  The  Koran,  though  re- 
garded by  Mohammedans  as  a  wonderful  literary  production, 
contains  little  to  admire,  when  translated  into  English.  Its 
repetition  of  the  Bible  stories,  with  variations  of  form,  are 
tedious  and  uninstructive.  The  strength  of  his  revelations 
seems  to  lie  in  the  vigorous  proclamation  of  the  unity  and 
power  of  God,  and  in  the  rewards  offered  to  the  true  believers 
of  a  paradise  suited  to  the  sensual  desires  of  the  people  to 
whom  he  spoke,  and  the  hot  torments  of  hell  denounced  as  a 
punishment  to  those  who  refused  to  accept  the  Koran.  The 
God  he  proclaimed  was  an  intensely  personal  one,  who  took 
a  keen  and  active  interest  in  human  affairs  and  rewarded  and 
punished  in  ample  measure.     His  doctrines  tended  directly  to 


ARABIA  157 

the  establishment  of  civil  power  under  religious  sanction,  and 
Mohammed  stands  out  in  bold  relief  as  the  founder  of  a 
religious  sect,  who  was  at  the  same  time  the  founder  of  an 
empire  over  subjects  unaccustomed  to  submit  to  despotic  rule. 
Although  the  Koran  is  the  law  for  all  Mohammedan  countries 
and  is  accepted  as  based  on  divine  authority,  it  is  exceedingly 
meager  in  its  rules  of  conduct,  and  is  adapted  to  such  condi- 
tions as  the  prophet  was  familiar  with.  The  moral  tone  is 
superior  to  most  of  the  Old  Testament,  but  quite  inferior  to 
that  of  the  New.  As  in  the  laws  of  Moses,  the  first  and  chief 
concern  was  to  provide  for  the  support  and  maintenance  of 
the  religion.  From  first  to  last  the  worship  of  the  true  and 
living  God  is  enjoined,  rewards  are  promised  for  the  true 
believers  and  punishments  denounced  for  the  infidels. 

The  religious  teachings  and  the  code  of  laws  put  forth  by 
Mohammed  can  best  be  studied  in  the  Koran,  in  which  is 
written  the  revelations  which  Mohammed  claimed  were  sent 
down  to  him.  The  following  extracts  the  text  will  give 
a  clearer  idea  of  Mohammed's  system  than  any  summary  of 
or  comment  on  the  Koran.  The  great  influence  Mohammed 
has  exerted  over  a  large  part  of  the  earth  through  so  many 
centuries,  in  religion  and  as  a  law-giver,  render  his  works  of 
peculiar  interest.  The  fanatical  spirit  which  animated  his 
followers  is  expressed  in  the  following  text:  "When  ye  en- 
counter the  unbelievers  strike  off  their  heads  until  ye  have 
made  a  great  slaughter  among  them,  and  bind  them  in  bonds ; 
and  either  give  them  a  free  dismission  afterwards  or  exact  a 
ransom  until  the  war  shall  have  laid  down  its  arms."^  "And 
as  to  those  who  fight  in  defense  of  God's  true  religion,  God 
will  not  suffer  their  works  to  perish;  he  will  guide  them  and 
dispose  their  hearts  aright;  and  he  will  lead  them  into  Para- 
dise of  which  he  hath  told  them,  God  hath  preferred  those 
who  fight  for  the  faith  above  those  who  are  still  by  adding 
unto  them  a  great  reward."^ 

"The  description  of  Paradise  which  is  promised  unto  the 
pioits,  therein  are  rivers  of  incorruptible  waters  and  rivers  of 

^  Ch.  47.     Sales'  Koran. 
""  Id.  Ch.  4,  p.  65. 


158  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

milk  the  taste  whereof  changeth  not,  and  rivers  of  wine, 
pleasant  unto  those  who  drink,  and  rivers  of  clarified  honey, 
and  therein  shall  they  have  plenty  of  all  kinds  of  fruits,  and 
pardon  from  their  Lord.  Shall  the  men  for  whom  these 
things  are  prepared  be  as  he  who  must  dwell  for  ever  in 
hell  fire  and  will  have  the  boiling  water  given  them  to  drink 
which  shall  burst  their  bowels."  "Verily  this  present  life  is 
only  a  play  and  a  vain  amusement;  but  if  ye  believe  and  fear 
God  He  will  give  you  your  rewards.  He  doth  not  require  of 
you  your  whole  substance,  if  He  should  require  the  whole  of 
you  and  earnestly  press  you,  ye  would  become  niggardly  and 
it  would  raise  your  hatred  against  His  apostles.  Behold  ye 
are  those  who  are  invited  to  expend  part  of  your  substance 
for  the  support  of  God's  true  religion ;  and  there  are  some 
of  you  who  are  niggardly.  But  whosoever  shall  be  niggardly 
shall  be  niggardly  toward  his  own  soul."^ 

''These  are  they  who  shall  approach  near  unto  God,  they 
shall  dwell  in  gardens  of  delight.  .  .  .  Reposing  on  couches 
adorned  with  gold  and  precious  stones,  sitting  opposite  to  one 
another  thereon.  Youths  which  shall  continue  in  their  bloom 
forever  shall  go  round  about  to  attend  them  with  goblets  and 
beakers  and  a  cup  of  flowing  wine ;  their  heads  shall  not  ache 
by  drinking  the  same  neither  shall  their  reason  be  disturbed; 
and  with  fruits  of  the  sorts  which  they  shall  choose  and  the 
flesh  of  herds  of  the  kinds  which  they  shall  desire,  and  there 
shall  accompany  them  fair  damsels  having  large  black  eyes 
resembling  pearls  hidden  in  their  shells,  as  a  reward  for  that 
which  they  shall  have  wrought.  They  shall  not  hear  therein 
any  vain  discourse  or  any  charge  of  sin  but  the  only  saluta- 
tion Peace,  Peace.  And  the  companions  of  the  right  hand, 
.  .  .  shall  have  their  abode  among  the  lote  trees  free  from 
thorns  and  trees  of  mauz  loaded  regularly  with  their  produce 
from  top  to  bottom,  under  an  extended  shade  near  a  flowing 
water  and  amidst  fruits  in  abundance  which  shall  not  fail  nor 
shall  be  forbidden  to  be  gathered;  and  they  shall  repose 
themselves  on  lofty  beds.    Verily  we  have  created  the  damsels 

'Id.  Ch.  4. 


ARABIA  159 

of  paradise  by  a  peculiar  creation,  and  we  have  made  them 
virgins,  beloved  by  their  husbands  of  equal  age  with  them, 
for  the  delight  of  the  companions  of  the  right  hand."^ 

"And  they  who  believe  not  shall  have  garments  of  fire 
fitted  unto  them ;  boiling  water  shall  be  poured  on  their  heads, 
their  bowels  shall  be  dissolved  thereby  also  their  skins  shall 
be  beaten  with  maces  of  iron."^ 

The  duty  of  giving  alms  is  frequently  enjoined,  and  this 
generally  meant  making  contributions  for  the  support  of  the 
faith.  Mohammed  himself  applied  all  his  receipts  to  the  use 
of  his  followers,  with  no  desire  to  amass  wealth,  and  alms 
with  him  really  meant  charitable  contributions,  except  when 
used  to  propagate  the  word  with  the  sword.  The  doctrines 
he  taught  were  not  above  the  comprehension  of  his  followers, 
and  the  rewards  promised  were  of  the  sort  most  pleasing  to 
them.  The  punishments  denounced  against  unbelievers  were 
well  calculated  to  terrify,  and  to  these  persuasions  he  added 
a  vigorous  policy  for  organization  and  extension  of  his  tem- 
poral power.    The  command  to  pray  was  peremptory. 

"Regularly  perform  thy  prayer  at  the  declension  of  the 
sun,  at  the  first  darkness  of  the  night  and  the  prayer  of  day 
break,  for  the  prayer  of  day  break  is  borne  witness  unto  by 
the  angels.  And  watch  some  part  of  the  night  in  the  same 
exercise  as  a  work  of  super-errogation  for  thee ;  peradventure 
thy  Lord  will  raise  thee  to  an  honorable  station,  and  say  O! 
Lord  cause  me  to  enter  with  a  favorable  entry,  and  cause  me 
to  come  forth  with  a  favorable  coming  forth,  and  grant  me 
from  thee  an  assisting  power.  And  say  truth  is  come  and 
falsehood  is  vanished;  for  falsehood  is  of  short  continuance."^ 

The  domestic  customs  prevailing  in  Arabia  in  the  time  of 
Mohammed  were  substantially  like  those  of  ancient  Judea, 
Egypt  and  Persia  and  his  teachings  did  not  call  for  radical 
changes.  "And  give  the  orphans  when  they  come  of  age 
their  substance,  and  render  them  not  in  exchange  bad  for 
good,  and  devour  not  their  substance  by  adding  it  to  your 
substance,   for  this  is  a  great  sin.     And  if  ye  fear  that  ye 

*Id.  Ch.  56.     'Id.  Ch.  22.     'Id.  Ch.  17. 


i6o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

shall  not  act  with  equity  towards  orphans  of  the  female  sex, 
take  in  marriage  of  such  other  women  as  please  you,  two  or 
three  or  four  and  not  more.  But  if  ye  fear  that  ye  cannot 
act  equitably  toward  so  many,  marry  one  only  or  the  slaves 
which  ye  shall  have  acquired.  This  will  be  easier  that  ye 
swerve  not  from  righteousness.  And  give  women  their 
dowry  freely;  but  if  they  voluntarily  remit  any  part  of  it 
unto  you,  enjoy  it  with  satisfaction  and  advantage.  And 
give  not  unto  those  who  are  weak  of  understanding  the  sub- 
stance which  God  hath  appointed  you  to  preserve  for  them, 
but  maintain  them  thereout  and  clothe  them  and  speak  kindly 
unto  them,  and  examine  the  orphans  until  they  attain  the  age 
of  marriage,  but,  if  ye  perceive  they  are  able  to  manage 
their  affairs  well,  deliver  their  substance  unto  them;  and  waste 
it  not  extravagantly  or  hastily,  because  they  grow  up.  Let 
him  that  is  rich  abstain  entirely  from  the  orphans  estate ;  and 
let  him  who  is  poor  take  thereof  according  to  that  which  shall 
be  reasonable.  And  when  ye  deliver  their  substance  unto 
them  call  witnesses  in  their  presence.  .  .  .  God  hath  thus 
commanded  you  concerning  your  children.  A  male  shall  have 
as  much  as  the  share  of  two  females,  but  if  they  be  females 
only  and  above  two  in  number,  they  shall  have  two  third  parts 
of  what  the  deceased  shall  leave,  and  if  there  be  but  one 
she  shall  have  the  half,  and  the  parents  of  the  deceased  shall 
have  each  of  them  a  sixth  part  of  what  he  shall  leave  if  he 
have  a  child,  but  it  he  have  no  child  and  his  parents  be  his 
heirs  then  his  mother  shall  have  the  third  part.  And  if  he 
have  brethern  then  his  mother  shall  have  a  sixth  part  after 
the  legacies  which  he  shall  bequeath  and  his  debts  be  paid. 
.  .  .  Moreover  ye  may  claim  half  of  what  your  wives  shall 
leave  if  they  have  no  issue,  but  if  they  have  issue,  then  ye 
shall  have  the  fourth  part  of  what  they  shall  leave  after  the 
legacies  which  they  shall  bequeath  and  the  debts  be  paid. 
They  also  shall  have  the  fourth  part  of  what  ye  shall  leave 
in  case  ye  have  no  issue,  but  if  ye  have  issue,  then  they  shall 
have  the  eighth  part  of  what  ye  shall  leave  after  the  legacies 
which  ye  shall  leave  and  the  debts  be  paid.  And  if  a  man's 
or  woman's  substance  be  inherited  by  distant  relation,  and  he 


ARABIA  i6i 

or  she  have  a  brother  or  sister  each  of  them  too  shall  have  a 
sixth  part  of  the  estate.  ...  If  any  of  your  v^omen  be  guilty 
of  whoredom  produce  four  witnesses  from  among  you 
against  them,  and  if  they  bear  witness  against  them  imprison 
them  in  separate  apartments  until  death  release  them  or  God 
affordeth  them  a  way  to  escape.  And  if  two  of  you  commit 
the  like  wickedness  punish  them  both,  but  if  they  repent  and 
amend,  let  them  both  alone ;  for  God  is  easy  to  be  reconciled, 
and  merciful.  Verily  repentance  will  be  accepted  with  God, 
from  those  who  do  evil  ignorantly  and  then  repent  speedily, 
unto  them  will  God  be  turned  for  God  is  knowing  and  wise. 
But  no  repentance  shall  be  accepted  from  those  who  do  evil 
until  the  time  when  death  presenteth  itself  unto  one  of  them 
and  he  saith  verily,  I  repent  now;  .  .  .  O  true  believer  it  is 
not  lawful  for  you  to  be  heirs  of  women  against  their  will, 
nor  to  hinder  them  from  marrying  others  that  ye  may  take 
away  part  of  what  ye  have  given  them  in  dowry ;  unless  they 
have  been  guilty  of  a  manifest  crime;  but  converse  kindly 
with  them.  ...  If  ye  be  desirous  to  exchange  a  wife  for 
another  wife  and  ye  have  already  given  one  of  them  a  talent, 
take  not  away  anything  therefrom.  .  .  .  Marry  not  women 
whom  your  fathers  have  had  to  wife;  for  this  is  uncleanness 
and  an  abomination  and  an  evil  way.  Ye  are  forbidden  to 
marry  your  mothers  and  your  daughters  and  your  sisters  and 
your  aunts,  both  on  the  fathers  and  on  the  mothers  side,  and 
your  brothers  daughters  and  your  sisters  daughters,  and  your 
mothers  who  have  given  you  suck  and  your  foster  sisters 
and  your  wives  mothers  and  your  daughters  in  law  which 
are  under  your  tuition,  born  of  your  wives,  .  .  .  and  the 
wives  of  your  sons  who  proceed  from  your  loins  and  ye  are 
also  forbidden  to  take  to  wife  two  sisters.  Ye  are  also  for- 
bidden to  take  to  wife  free  women  who  are  married,  except 
those  women  whom  your  right  hand  shall  possess  as  slaves. 
.  .  .  Whoso  among  you  hath  not  means  sufficient  that  he 
may  marry  free  women  who  are  believers,  let  him  marry  with 
such  of  your  maid  servants  whom  your  right  hands  possess 
as  are  true  believers.  .  .  .  Serve  God  and  associate  no  crea- 
ture with  Him,  and  show  kindness  unto  parents,  and  relatives 


i62  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  orphans  and  the  poor,  and  your  neighbor  who  is  kin  to 
you,  and  also  your  neighbor  who  is  a  stranger,  and  your 
familiar  companion  and  the  traveller  and  the  captives  whom 
your  right  hand  shall  possess."^ 

Husbands  were  allowed  to  divorce  their  wives  at  will,  the 
only  restrictions  being  as  to  the  time  of  putting  them  away, 
which  could  not  be  during  pregnancy.  "And  speak  unto  the 
believing  women  that  they  restrain  their  eyes,  and  preserve 
their  modesty  and  discover  not  their  ornaments,  except  what 
necessarily  appeareth  thereof,  and  let  them  throw  their  veils 
over  their  bosoms  and  not  show  their  ornaments  unless  to 
their  husbands  or  their  fathers  or  their  husbands  fathers  or 
their  sons  or  their  husbands  sons  or  their  brothers  or  their 
brothers  sons  or  their  sisters  sons  or  their  women  or  the 
captives  which  their  right  hands  possess,  or  unto  such  men 
as  attend  them  and  have  no  need  of  women  or  unto  children 
who  distinguish  not  the  nakedness  of  women." 

O  true  believers  enter  not  any  houses  besides  your  own 
houses  until  ye  have  asked  leave  and  have  saluted  the  family 
thereof  .  .  .  and  if  ye  find  no  person  in  the  houses,  yet  do 
not  enter  them  until  leave  be  granted  you,  and  if  it  be  said 
unto  you  return  back,  do  ye  return  back.^ 

The  criminal  code  is  not  voluminous.  The  Mosaic  lex 
talionis  is  repeated  with  leave  to  remit  on  payments  of  alms. 
"It  is  not  lawful  for  a  believer  to  kill  a  believer  unless  it  hap- 
pen by  mistake,  and  whoso  killeth  a  believer  by  mistake  the 
penalty  shall  be  the  freeing  of  a  believer  from  slavery  and  a 
fine  to  be  paid  to  the  family  of  the  deceased  unless  they  remit 
it  as  alms;  and  if  the  slain  person  be  of  a  people  at  enmity 
with  you  and  be  a  true  believer,  the  penalty  shall  be  the  free- 
ing of  a  believer,  and  if  he  be  of  a  people  in  confederacy 
with  you,  a  fine  to  be  paid  to  his  family,  and  the  freeing  of  a 
believer,  and  he  who  findeth  not  wherewith  to  do  this  shall 
fast  two  months  consecutively,  as  a  penance  enjoined  from 
God.  ...  But  whoso   killeth   a   believer   designedly   his   re- 

^  Id.  'Ch.  4,  entitled  Women. 
^  Id.  Ch.  24,  p.  265. 


ARABIA  163 

ward  shall  be  hell,  he  shall  remain  there  forever."^  "If  a 
man  or  woman  steal  cut  off  his  hand." 

'The  whore  and  the  whoremonger  shall  ye  scourge  with 
an  hundred  stripes.  And  let  no  compassion  toward  them 
prevent  you  from  executing  the  judgment  of  God.  .  .  .  The 
whoremonger  shall  not  marry  any  other  than  a  harlot  or  an 
idolatress.  And  a  harlot  shall  no  man  take  in  marriage  ex- 
cept a  whoremonger  or  an  idolater;  and  this  kind  of  mar- 
riage is  forbidden  the  true  believers.  But  as  .to  those  who 
accuse  women  of  reputation  of  whoredom  and  produce  not 
four  witnesses  of  the  fact,  scourge  them  with  fourscore 
stripes  and  receive  not  their  testimony  forever,  for  such  are 
infamous  prevaricators,  excepting  those  who  shall  afterwards 
repent  and  amend,  for  unto  such  will  God  be  gracious  and 
merciful.  They  who  shall  accuse  their  wives  of  adultery  and 
shall  have  no  witnesses  thereof  besides  themselves;  the  testi- 
mony which  shall  be  required  of  one  of  them  shall  be  that 
he  swear  four  times  by  God  that  he  speaketh  the  truth;  and 
the  fifth  time  that  he  imprecate  the  curse  of  God  on  him  if 
he  be  a  liar.  And  it  shall  avert  the  punishment  from  the 
wife,  if  she  swear  four  times  by  God  that  he  is  a  liar,  and  if 
the  fifth  time  she  imprecate  the  wrath  of  God  on  her  if  he 
speaketh  the  truth.  ^^ 

''Kill  not  your  children  for  fear  of  being  brought  to  want, 
we  will  provide  for  them  and  for  you ;  verily  the  killing  them 
is  a  great  sin.  Draw  not  near  unto  fornication  for  it  is 
wickedness  and  an  evil  way.  Neither  slay  the  soul  which  God 
hath  forbidden  you  to  slay  unless  for  a  just  cause"  (apostasy, 
adultery  or  murder)  "and  whosoever  shall  be  slain  unjustly 
we  have  given  his  heir  power  to  demand  satisfaction,  but  let 
him  not  exceed  the  bounds  of  moderation  in  putting  to  death 
the  murderer  in  too  cruel  a  manner,  or  by  revenging  his 
friend's  blood  on  any  other  than  the  person  who  killed  him, 
since  he  is  assisted  by  this  law,  and  meddle  not  with  the  sub- 
stance of  the  orphan,  unless  it  be  to  improve  it  until  he 
attain  his  age  of  strength,  and  perform  your  covenant,  for 

'  Id.  Ch.  5,  p.  78. 

^'Id.  Ch.  24,  entitled  Light. 


i64  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  performance  of  your  covenant  shall  be  inquired  into  here- 
after. And  give  full  measure  where  you  measure  aught,  and 
weigh  with  a  just  balance.  This  will  be  better  and  more 
easy  for  determining  every  man's  due.  .  .  .  Walk  not  proudly 
in  the  land  for  thou  canst  not  cleave  the  earth  neither  shalt 
thou  equal  the  mountains  in  stature.  All  this  is  evil  and 
abominable  in  the  sight  of  thy  Lord."^^ 

''O  true  believers  let  not  men  laugh  other  men  to  scorn  who 
peradventure  may  be  better  than  themselves;  neither  let  wo- 
men laugh  other  women  to  scorn  who  possibly  may  be  better 
than  themselves.  Neither  defame  one  another,  nor  call  one 
another  by  approbrious  appellations.  An  ill  name  is  to  be 
charged  with  wickedness  after  having  embraced  the  faith,  and 
whoso  repenteth  not  they  will  be  the  unjust  doers.  O  true 
believers,  carefully  avoid  entertaining  a  suspicion  of  another, 
for  some  suspicions  are  a  crime.  Inquire  not  too  curiously 
into  another  man's  failings,  neither  let  the  one  of  you  speak 
ill  of  another  in  his  absence."^^ 

''Whatever  things  are  given  you  they  are  the  provisions  of 
the  present  life;  but  the  reward  which  is  with  God  is  better 
and  more  durable,  for  those  who  believe  and  put  their  trust 
in  their  Lord  and  who  avoid  heinous  and  filthy  crimes  and 
when  they  are  angry  forgive,  and  who  hearken  unto  their 
Lord  and  are  constant  at  prayer,  and  whose  affairs  are  di- 
rected by  consultation  among  themselves,  and  who  give  alms 
out  of  what  we  have  bestowed  on  them,  and  who  when  an 
injury  is  done  them,  avenge  themselves  (and  the  retaliation 
of  evil  ought  to  be  an  evil  proportionate  thereto),  but  he  who 
forgiveth  and  is  reconciled  unto  his  enemy  shall  receive  his 
reward  from  God,  for  he  loveth  not  the  unjust  doers. "^^ 

''Thy  Lord  hath  commanded  that  ye  worship  none  besides 
him,  and  that  ye  show  kindness  unto  your  parents,  whether 
the  one  of  them  or  both  of  them  attain  to  old  age  with  thee. 
Wherefore  say  not  unto  them.  Fie  on  you;  neither  reproach 
them,  but  speak  respectfully  unto  them,  and  submit  to  behave 

"/rf.  Ch.   17,  entitled  The  Night  Journey. 
^^  Id.  Ch.  49,  entitled  The  Inner  Apartments. 
^^Id.  Ch.  42,  entitled  Consultation. 


ARABIA  165 

humbly  towards  them  out  of  tender  affection  and  say  O 
Lord  have  mercy  on  them  both  as  they  nursed  me  when  I 
was  Httle.  .  .  .  And  give  unto  him  who  is  of  kin  to  you 
his  due  and  also  unto  the  poor  and  the  traveller,  and  waste 
not  your  substance  profusely  for  the  profuse  are  brethern  of 
the  devils."!^ 

"God  will  not  punish  you  for  an  inconsiderate  word  in 
your  oaths,  but  he  will  punish  you  for  what  ye  solemnly 
swear  with  deliberation.  And  the  expiation  of  such  an  oath 
shall  be  the  feeding  of  ten  poor  men  with  such  moderate  food 
as  ye  feed  your  own  families  withal,  or  to  clothe  them,  or  to 
free  the  neck  of  a  true  believer  from  captivity,  but  he  who 
shall  not  find  wherewith  to  perform  one  of  these  three  things 
shall  fast  three  days.  This  is  the  expiation  of  your  oaths 
when  ye  swear  inadvertently.  Therefore  keep  your  oaths. 
Thus  God  declareth  unto  you  his  signs  that  ye  may  give 
thanks.  O  true  believers  surely  wine  and  lots  and  images 
and  divining  arrows  are  an  abomination  of  the  work  of 
Satan;  therefore  avoid  them  that  ye  may  prosper.  Satan 
seeketh  to  sow  dissension  and  hatred  among  you  by  means 
of  wine  and  lots  and  to  divert  you  from  remembering  God 
and  prayer,  will  ye  not  therefore  abstain  from  them?"^^ 

"Say  I  find  not  in  that  which  hath  been  revealed  unto  me 
anything  forbidden  unto  the  eater  that  he  eat  it  not,  except 
it  be  that  which  dieth  of  itself  or  blood  poured  forth,  or 
swine  flesh  for  this  is  an  abomination,  or  that  which  is  pro- 
fane, having  been  slain  in  the  name  of  some  other  than  of 
God.  But  whoso  shall  be  compelled  by  necessity  to  eat  of 
these  things,  not  lusting  nor  wilfully  transgressing,  verily  the 
Lord  will  be  gracious  unto  him  and  merciful."^^ 

"They  who  devour  usury  shall  not  arise  from  the  dead  but 
as  he  ariseth  whom  Satan  hath  infected  by  a  touch,  this  shall 
happen  to  them  because  they  say,  Truly  selling  is  but  as  usury 
and  yet  God  hath  permitted  selling  and  forbidden  usury.  He 
therefore  who,  when  there  cometh  unto  him  an  admonition 
from  his  Lord,  abstaineth  from  usury  for  the  future,  shall 

''Id.  Ch.  17.  ''Id.  Ch.  5.  ''Id.  Ch.  6. 


:i66     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

have  what  is  past  forgiven  him,  and  his  affair  belongeth  unto 
God.  But  whoever  returneth  to  usury,  they  shall  be  the  com- 
panions of  hell  fire,  they  shall  continue  therein  forever."^^ 

''O  true  believers,  when  you  bind  yourselves  one  to  the 
other  in  a  debt  for  a  certain  time,  write  it  down,  and  let  a 
writer  write  between  you  according  to  justice,  and  let  not 
the  writer  refuse  writing,  according  to  what  God  hath  taught 
him,  but  let  him  write  and  let  him  who  oweth  the  debt  dictate, 
and  let  him  fear  God  his  Lord  and  not  diminish  aught  thereof. 
But  if  he  who  oweth  the  debt  be  foolish  or  weak  or  be  not 
able  to  dictate  himself,  let  his  agent  dictate  according  to  equity 
and  call  to  witness  two  witnesses  of  your  neighboring  men; 
but  if  there  be  not  two  men,  let  there  be  a  man  and  two 
women  of  those  whom  ye  shall  choose  for  witnesses,  if  one 
of  these  women  should  mistake  the  other  will  cause  her  to 
recollect,  and  the  witnesses  shall  not  refuse  whensoever  they 
shall  be  called.  And  disdain  not  to  write  it  down,  be  it  a 
large  debt  or  be  it  a  small  one,  until  its  time  of  payment; 
this  will  be  more  just  in  the  sight  of  God,  and  more  right  for 
bearing  witness  and  more  easy  that  ye  may  not  doubt.  But 
if  it  be  a  present  bargain  which  ye  transact  between  your- 
selves, it  shall  be  in  you  if  ye  write  it  not  down.  And  take 
witnesses  when  ye  sell  one  to  the  other,  and  let  no  harm 
be  done  to  the  writer  nor  to  the  witnesses."^^ 

The  true  believers  were  commanded  to  wash  before  prayers 
and  if  where  no  water  could  be  had,  to  rub  faces  and  hands 
with  fine  clean  sand. 

''O  true  believers  observe  justice  when  ye  bear  witness  be- 
fore God,  although  it  be  against  yourselves  or  your  parents  or 
relations,  whether  the  party  be  rich  or  whether  he  be  poor, 
for  God  is  more  worthy  than  them  both ;  therefore  follow  not 
your  own  lust  in  bearing  testimony  so  that  ye  swerve  from 
justice.  And  whether  ye  wrest  your  evidence  or  decline  giv- 
ing it  God  is  well  acquainted  with  that  which  ye  do."^^ 

"God  hath  appointed  the  Caaba  the  holy  house  an  establish- 
ment for  mankind;  and  hath  ordained  the  sacred  month  and 

"/rf.  Ch.  2.  ""Id.  Ch.  2.  "M  Ch.  4. 


ARABIA  167 

the  offering  and  the  ornaments  hung  thereon."-^  "But  they 
who  shall  disbelieve  and  obstruct  the  way  of  God  and  hinder 
men  from  visiting  the  holy  temple  of  Mecca  which  we  have 
appointed  for  a  place  of  worship  unto  all  men;  the  inhabi- 
tant thereof  and  the  stranger  have  an  equal  right  to  visit  it; 
and  whosoever  shall  seek  impiously  to  profane  it  we  will 
cause  him  to  taste  a  grievous  torment.  Call  to  mind  when 
we  ga-ve  the  site  of  the  Caaba  for  an  abode  unto  Abraham, 
saying,  Do  not  associate  anything  with  me  and  cleanse  my 
house  from  those  who  compass  it  and  who  stand  up  and  who 
bow  down  to  worship.  And  proclaim  unto  the  people  a 
solemn  pilgrimage,  let  them  come  unto  thee  on  foot  and  on 
every  lean  camel  arriving  from  every  distant  road,  that  they 
may  be  witnesses  of  the  advantages  that  accrue  to  them  from 
visiting  the  holy  place,  and  may  commemorate  the  name  of 
God  on  the  appointed  days  in  gratitude  for  the  brute  cattle 
he  hath  bestowed  on  them."^^ 

The  foregoing  passages  cover  substantially  all  of  Moham- 
med's law-giving.  The  substance  of  some  of  these  commands 
is  repeated  in  other  places,  but  the  balance  of  the  Koran  is 
filled  w^ith  sermons  and  narratives  taken  fropi  the  Bible,  and 
frequent  and  oft  repeated  denunciations  of  the  infidels.  This 
meager  code  did  not  suffice  for  the  vast  empire  built  up  by  his 
successors.  To  supplement  it  recourse  was  had  to  decisions 
made  by  Mohammed,  to  analogies,  traditions  and  customs 
constituting  the  Sunna.  Numberless  commentators  elucidated 
the  text  of  the  Koran,  and  the  decisions  of  Mohammed  were 
collected  and  published.  Where  all  these  failed  to  furnish  a 
rule  the  early  Caliphs  exercised  their  own  judgment  and,  as 
must  always  happen  everywhere  in  the  absence  of  an  estab- 
lished rule  or  precedent,  the  opinion  of  the  judge  in  the 
particular  case  necessarily  stands  for  law.  Throughout  all 
Mohammedan  countries,  however,  the  Koran  was  ever  looked 
to  for  the  spirit  of  the  whole  law,  and  its  commands  admitted 
of  no  change  or  modification  by  any  authority  whatever.  A 
lengthy  treatise  on  Mohammedan  jurisprudence,  that  of  Ibn 

''Id.  Ch.  5. 

"/(/.  Ch.  23,  entitled  The  True  Believer. 


t68  evolution  of  GOVERNMENTS  AND  LAWS 

Hanbal,  has  the  following  principal  heads.  Of  Purification 
(ablution,  purification  of  women,  circumcision,  etc.).  Of 
Prayer,  of  Funerals,  of  Tithe  and  Almsgiving,  of  the  legal 
Fasts,  of  the  Pilgrimage  to  Mecca,  of  Commercial  and  other 
transactions,  of  Inheritance,  of  marriage  and  divorce,  of  the 
Faith,  of  Crimes  and  Misdemeanors,  of  Justice,  of  the  Ima- 
mate  or  spiritual  power,  and  of  the  Caliphate  or  temporal 
power. 

An  American  lawyer  would  be  more  likely  to  think  he  had 
found  a  religious  commentary  than  a  law  book,  but  with 
Mohammedans,  law  and  gospel  were  one. 

Mohammed's  power  was  derived  from  the  belief  in  his 
divine  commission.  The  scope  and  limitations  of  his  authority 
were  fixed  by  revelations  of  the  Koran,  from  time  to  time, 
as  the  exigencies  of  state  required.  In  his  life  he  extended 
his  power  over  Arabia  and  sought  submission  from  neighbor- 
ing people,  but  died  when  preparing  to  invade  Syria.  His 
successors  rapidly  extended  their  power  over  Egypt,  Syria 
and  thence  over  the  north  of  Africa  and  all  Asia  Minor.  The 
first  four  Caliphs  were  chosen  by  the  community  at  Medina. 
The  revenues  of  the  state  consisted  of  the  tithe  for  the  poor, 
which  every  Moslem  was  required  to  pay,  a  fifth  of  the  spoils 
of  war, — the  rest  going  to  the  warriors, — the  poll  tax  and 
land  tax  on  infidels.  The  Caliph  administered  the  revenues 
according  to  his  pleasure.  The  poll  tax  ranged  from  about 
two  dollars  on  the  poor  to  about  eight  dollars  on  the  rich.  The 
land  tax  was  in  the  nature  of  a  rent  according  to  the  character 
of  the  holding.  In  the  early  days  pensions  were  paid  to  the 
faithful  out  of  the  public  revenues.  With  the  growth  of  the 
empire  the  necessities  of  administration  caused  its  division  in- 
to provinces,  first  ten,  and  on  the  removal  of  the  capital  from 
Damascus  to  Bagdad,  twelve.  Each  province  was  governed  by 
a  perfect,  who  stood  in  the  place  of  the  Caliph.  The  central 
administration  developed  into  various  departments,  each  un- 
der the  supervision  of  a  chief.  There  was  a  ministry  of 
Finance,  Bureau  of  State  property,  Exchequer  Office,  Min- 
istry of  War,  Court  of  Appeal,  Bureau  of  freedmen  and 
slaves  of  the  Caliphs,  Office  of  expenditure.  Office  of  Posts, 


ARABIA  169 

Office  of  Correspondence,  Office  of  the  Imperial  Seal  and 
registration.  All  power  was  centered  in  the  Caliph,  who  was 
the  spiritual  as  well  as  the  temporal  head.  The  ministers  of 
the  various  departments  were  responsible  to  him.  So  were 
the  prefects  who  stood  as  his  representatives  in  the  provinces. 

Justice  was  administered  by  Cadis  appointed  by  the  Caliph, 
his  Vizier  or  the  prefect.  To  be  eligible  to  this  appointment 
one  must  be  a  free  male  Moslem,  of  suitable  age,  sound  mind, 
good  morals  and  learned  in  the  law.  The  Cadis  had  general 
civil  and  criminal  jurisdiction  and  of  guardianships  and  es- 
tates, and  over  mosques,  schools  and  public  buildings.  To  as- 
sist him  the  Cadi  had  Notaries,  Secretaries  and  Deputies- 
From  the  decision  of  the  Cadi  an  appeal  might  be  taken  to 
the  Court  of  Appeal,  which  was  presided  over  by  the  Caliph  in 
person  till  the  time  of  Mohtadi,  after  which  a  special  judge 
appointed  for  that  purpose  presided.  In  the  provinces  there 
were  Marshals  who  kept  records  of  the  birth  and  death  of 
descendants  of  the  family  of  the  Prophet.  The  Imams  of- 
ficiated at  the  Mosques. 

The  practical  application  of  the  Koran  in  the  decision  of 
causes  by  the  Cadis  and  the  religious  sentiment  of  the  be- 
lievers combined  in  calling  out  innumerable  commentaries, 
seeking  to  elucidate  and  make  plain  whatever  was  obscure. 
Judges  with  a  fixed  guide  for  their  decisions  were  a  marked 
improvement  over  despotism,  notwithstanding  the  meager 
rules  afforded  by  the  Koran.  Under  the  Caliphs  a  new  and 
better  civilization  than  any  which  had  preceded  it  developed, 
and  the  seats  of  learning  and  progress  in  literature,  art  and 
science  were  within  the  Moslem  world.  As  the  lights  grew 
dim  in  the  crumbling  empire  of  Rome  and  Constantinople 
they  burned  more  brightly  at  Damascus  and  Bagdad,  illumi- 
nating the  followers  of  Islam  from  India  to  Andalusia. 
Though  the  teachings  of  Mohammed  were  not  so  pure  and 
exalted  as  those  of  Christ,  they  were  coupled  with  more  prac- 
tical means  for  their  observance,  and  on  Asiatic  and  African 
soil  they  manifested  superior  adaptation.  In  Europe  they 
never  took  firm  root,  save  among  the  Moors  in  Spain  and  the 
Turks  in  the  east. 


I70  EVOLUTIO'N  OF  GOVERNMENTS  AND  LAWS 

Though  at  this  day  it  is  estimated  that  near  175,000,000 
people  are  Mohammedans,  the  empire  of  the  CaHphs  is  in 
scattered  fragments.  The  Koran  sanctions  slavery  and  poly- 
gamy and,  while  it  forbids  wine  and  gaming  in  this  world,  it 
promises  a  sensual  idlers'  heaven.  Its  ideals  are  neither  pure 
nor  exalted  and  its  standard  of  justice  is  partial  and  deficient. 
While  apparently  of  great  use  in  its  time,  like  all  other  rigid 
systems  enforced  by  a  religious  sanction,  it  perpetuates  its 
errors  and  vices,  and  in  the  lapse  of  centuries  these  seem  to 
overshadow  the  good  and  render  the  whole  an  obstacle  to  be 
removed  to  make  way  for  something  better.  But  so  well  is 
the  faith  with  its  rewards  and  punishment  adapted  to  certain 
types  of  men,  that  neither  Christianity  nor  Buddhism  has  suc- 
ceeded in  transplanting  it. 


CHAPTER  IX 


India 


Within  the  geographical  limits  of  what  we  call  India  there 
are,  and  in  the  earliest  times  of  which  we  have  any  accounts 
were,  so  many  people,  differing  in  race,  language  and  social 
condition  from  each  other,  that  generalizations  become  ex- 
ceedingly difficult  and  a  connected  historical  statement  of  the 
development  of  their  civilization  quite  impossible.  No  single 
race  has  at  any  known  date  occupied  the  whole  territory.  No 
one  language  has  been  spoken  by  all  the  people.  At  this  day 
the  ethnologist  finds  there  an  ample  field  for  the  study  of  the 
diverse  types  of  men.  Connected  histories  by  native  writers 
are  almost  wholly  wanting.  The  material  from  which  the 
student  must  proceed  to  construct  an  account  of  the  past  is 
fragmentary.  The  earliest  accounts  come  through  the  sacred 
writings  of  the  Aryan  invaders,  who  entered  the  country 
from  the  northwest.  The  date  of  their  advent  into  the  Pun- 
jab is  variously  estimated  by  scholars  on  data  which  leave  a 
very  wide  margin  for  difference  of  inference,  with  no  means 
of  definitely  settling  the  point.  It  seems  safe  to  say  that  it 
was  more  than  looo  B.C.  and  may  have  been  thousands  of 
years  earlier.  These  invaders  found  the  country  already 
peopled  by  numerous  tribes,  some  of  whom  used  iron  imple- 
ments and  were  considerably  advanced  above  the  savage  state. 
Of  the  people  occupying  those  parts  of  the  country  remote 
from  the  invaders  we  have  no  accounts  reaching  back  to  so 
early  a  time. 

From  the  Vedic  hymns  are  gathered  the  leading  facts  re- 
lating to  the  movement  of  the  Indian  branch  of  the  great 
Aryan  family  from  the  common  home  in  the  mountain  region 
from  which  the  Oxus  and  Jaxartes  flowed.  What  causes  have 
produced  the  Brahmin  type  in  India  and  the  Persian,  Median 
and  European  in  the  west  it  is  not  our  purpose  to  inquire,  but 

171 


172  EVOLUTIO'N  OF  GOVERNMENTS  AND  ii\WS 

it  may  be  noticed  that  the  race  is  generally  the  dominant  one 
wherever  found.  The  earliest  songs  disclose  the  clans  in 
Cabul  north  of  Khyber  Pass,  the  later  ones  show  them  to  have 
reached  the  Ganges.  They  were  a  very  religious  people  and 
placed  great  reliance  on  the  aid  of  their  gods.  The  Rich- 
Veda  shows  the  Aryans  dwelling  along  the  banks  of  the 
Indus,  divided  into  tribes,  sometimes  warring  with  each  other, 
sometimes  united  against  the  dark  skinned  aborigines.  Each 
father  of  a  family  was  also  its  priest.  The  chief  acted  as 
priest  of  the  tribe,  but  at  the  great  festivals  chose  some  one 
specially  learned  in  the  rites  to  conduct  the  sacrifices.  Chiefs 
were  elected.  Husband  and  wife  together  were  rulers  of  the 
house,  and  the  marriage  relation  was  held  sacred.  Caste  and 
the  burning  of  widows  were  unknown.  Before  entering  India 
through  the  Kyber  Pass  and  while  still  in  the  mountainous 
region  near  Cabul,  the  Aryans  had  already  discovered  or 
learned  many  of  the  arts  of  civilization.  They  had  black- 
smiths, coppersmiths ,  goldsmiths,  carpenters  and  barbers. 
They  fought  in  chariots  and  with  horses,,  they  reared  cattle, 
tilled  the  soil,  spun  and  wove.  When  and  where  the  art  of 
writing  was  learned  by  them  is  a  point  on  which  scholars  differ 
widely.  While  it  is  agreed  on  all  hands  that  the  hymns  of 
the  Rig  Veda  are  of  very  ancient  composition,  definite  dates 
have  not  been  fixed,  and  it  is  claimed  that  they  were  not  re- 
duced to  writing  for  many  centuries  after  their  original  com- 
position. 

This  strong,  vigorous  and  highly  religious  race  of  people 
descended  into  the  valley  of  the  Indus,  which  they  found  al- 
ready occupied  by  inferior  people.  Most  of  the  aboriginal 
tribes  found  by  the  Aryans  were  of  a  negroid  or  mongolian 
type,  not  more  advanced  in  culture  than  the  American  In- 
dians at  the  time  of  the  discovery  of  the  western  continent. 
There  were  others  mentioned  in  Sanskrit  literature  as  wealthy 
and  possessed  of  castles  and  forts.  They  adorned  their  dead 
with  raiment  and  ornaments  of  bronze,  copper  and  gold. 
There  are  ample  evidences  of  the  existence  in  early  times  of 
rude  tribes,  who  used  stone  implements,  but  just  at  what  stage 
of  development  all  the  native  people  had  arrived  at  the  time 


INDIA  173 

of  the  advent  of  the  Aryans,  it  is  impossible  to  state.  That 
the  invaders  were  superior  as  warriors,  as  well  as  in  culture, 
is  evident  from  the  extension  of  their  possessions,  which 
spread  from  the  valley  of  the  Indus  to  that  of  the  Ganges  and 
ultimately  extended  over  most  of  the  peninsula.  The  con- 
quests of  the  Aryans  however,  were  not  merely  the  extension 
of  military  power  and  governmental  control  over  the  native 
population,  but  the  encroachments  of  a  superior  race,  which 
either  drove  out  or  subjugated  the  inferior.  Race  and  re- 
ligious superiority  were  asserted  rather  than  mere  sovereignty, 
and  the  invaders  came  to  make  the  conquered  country  their 
home. 

The  non-Aryan  races  are  said  to  belong  to  three  principal 
stocks,  the  Tibeto-Burman,  the  Kolarian  and  Dravidian.  The 
language  of  the  Tibeto-Burman  indicates  Mongolian  and 
Chinese  origin,  and  it  is  inferred  that  they  crossed  into  the 
country  they  now  inhabit  along  the  skirts  of  the  Himalayas 
from  Central  Asia.  The  Kolarians  are  also  supposed  to  have 
entered  India  from  the  north  and  are  now  found  mainly  in 
the  north  and  along  the  northern  edge  of  the  southern  table- 
land. At  the  present  time  they  appear  as  scattered  tribes, 
whose  common  origin  is  proved  by  similarity  of  language 
and  appearance  rather  than  any  social  connection  or  tradition 
of  common  origin.  The  Dravidians  form  a  compact  mass 
in  southern  India,  and  the  dialects  classed  as  Dravidian  are 
spoken  by  nearly  50,000,000  people.  Aside  from  these  prin- 
cipal stocks,  the  presence  of  Africans  and  Arabs  in  India  in 
very  early  times  is  well  established,  and  their  blood  has  been 
preserved  and  mixed  with  the  other  stocks  to  a  considerable 
degree.  At  all  periods  in  its  history  India  seems  to  have  at- 
tracted to  it  people  from  the  north  and  west,  not  only  for 
trade,  but  also  for  permanent  settlement  and  conquest. 

Chaldeans,  Assyrians  and  Egyptians  as  well  as  Chinese 
have  known  of  and  traded  with  the  people  of  India  from  very 
early  times,  yet  very  little  can  be  learned  of  the  early  condi- 
tions of  the  people  from  accounts  derived  through  these 
sources.  It  is  impossible  to  trace  the  governmental  and 
social  state  of  India  through  the  historical  period  and  ignore 


174  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  rise  and  fall  of  religion.  Nowhere  else  has  the  effect 
of  religious  teaching  on  social  life  been  greater  or  more 
enduring. 

The  proud  Aryan  invaders,  whose  deeds  are  related  in  the 
Vedic  verses,  asserted  and  maintained,  not  only  their  own  race 
superiority  over  the  people  they  subdued,  but  also  the  superi- 
ority of  their  gods  over  the  weaker  ones  of  the  aborigines. 
In  the  early  period  of  the  Aryan  invasion,  when  the  art  of 
writing  was  unknown,  the  battle  hymns  and  sacrificial  cere- 
monials were  passed  down  by  oral  instruction  from  father  to 
son.  This  led  to  the  growth  of  a  priestly  order,  specially 
versed  in  all  that  pertained  to  the  sacred  rituals.  Great  faith 
was  put  in  the  efificiency  of  battle  hymns  that  had  been  chanted 
and  prayers  that  had  been  offered  before  successful  battles. 
By  degrees  the  number  of  prayers  and  hymns  increased  and 
the  priestly  order  multiplied,  till  the  great  ceremonies  re- 
quired superior  priests  to  direct  and,  under  them,  those  who 
prepared  the  sacrificial  ground,  dressed  the  altars,  slew  the 
victims  and  poured  the  libations,  those  who  chanted  the  Vedic 
hymns  and  those  who  recited  other  parts  of  the  service.  In 
the  course  of  time  a  priestly  order  was  thus  developed.  As 
the  conquests  of  the  invaders  were  extended  by  continual 
wars  against  the  primitive  people,  the  leaders  of  the  army, 
who  were  rewarded  with  such  possessions  as  enabled  them  to 
devote  all  their  time  to  the  service  of  the  king,  became  the 
military  class.  The  common  people  who  settled  down  and 
tilled  the  soil  became  the  Vaisyas,  and  beneath  them  were  the 
conquered  people  who  were  forced  to  serve  the  invaders.  In 
this  manner  the  four  fundamental  castes,  which,  with  their 
numerous  divisions,  subdivisions  and  new  classifications,  have 
given  to  Indian  society  its  peculiar  structure,  were  founded. 
The  Brahmans  have  always  asserted  their  superiority  over  all, 
but  this  has  not  always  been  conceded  by  the  military  caste, 
and  the  relative  power  and  influence  of  these  leading  castes 
have  fluctuated  with  the  varying  conditions  due  to  the  rise 
and  fall  of  dynasties  and  the  strength  or  weakness  of  princes 
and  other  causes. 

The  Vaisyas  were  the  lowest  caste  of  the  Aryan  stock,  yet 


INDIA  175 

were  ranked  as  belonging  to  the  "twice  born"  and  were  all 
allowed  to  be  present  at  the  great  national  sacrifices.  The 
lowest  were  the  once  born  Sudras,  the  Dasas  of  the  Veda, 
whose  lives  were  spared  by  the  conquerors  in  order  that  they 
might  Hve  as  a  servile  class.  These  were  not  allowed  to  at- 
tend the  great  sacrifices  and  feasts.  It  was  their  lot  to  per- 
form the  hardest  and  meanest  labor,  and  from  their  low 
estate  they  could  never  rise.  The  system  of  castes  did  not 
fully  develop  until  after  the  Aryans  were  well  settled  along 
the  Ganges.  It  did  not  obtain  in  the  early  settlements  west 
of  the  Indus.  In  the  Middle  Land,  from  Delhi  to  Benares, 
the  Brahmans  became  a  compact  body  which  assumed  to  dic- 
tate to  all  classes  in  all  matters  relating  to  religion,  philosophy 
and  law.  They  denounced  all  Aryans  who  did  not  submit 
to  their  pretensions  as  lapsed  and  outcast  tribes.  The  re- 
ligious thought  of  the  people  found  its  expression  in  the 
Vedas,  which  were  ultimately  compiled  and  reduced  to  writ- 
ing. The  Brahmans  however  were  not  content  with  the  en- 
forcement of  religious  rites  and  the  preservation  of  the 
ancient  faith.  They  sought  to  secure  their  own  position  and 
the  social  system  which  had  been  developed  by  codes  of  laws. 
The  earliest  of  these  are  the  Dharma  Sastras,  which  exhibit 
the  state  of  the  Hindu  law  at  an  early  date,  not  fixed  with 
any  degree  of  certainty.  They  do  not  purport  to  be  new 
enactments,  but  simply  compilations  of  existing  law.  They 
recognize  and  enforce  the  division  into  castes  in  the  order 
stated.  Later  than  this  came  the  great  code  of  Manu  which 
the  Brahmans  ascribe  to  the  first  Aryan  man  thirty  millions 
of  years  ago.  This  was  a  compilation  of  the  laws  which  had 
been  established  in  that  portion  of  India  where  the  Brahman- 
ical  order  exercised  the  greatest  influence.  This  so-called  code 
has  wielded  a  more  powerful  influence  and  over  a  far  wider 
field  than  any  native  dynasty  ever  established  in  India.  So 
strong  a  hold  did  the  system  which  it  expressed  gain  on  the 
people  of  India  that  its  leading  tenets  have  maintained  their 
authority  through  all  the  mutations  of  race  and  empire,  even 
to  the  present  day.  Later  than  this  came  a  second  great  code 
that  of  Yajnavalka,  compiled  after  the  establishment  of  Bud- 


176  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

dhism.  It  is  a  reiteration  of  the  laws  of  Manu  with  some 
additions  relating  to  legal  forms  and  other  matters. 

These  codes  found  their  sanction  in  the  Vedas,  which  had 
attained  the  authority  of  inspired  writings,  and  the  rules  de- 
clared for  the  government  of  all  classes  of  people  were  mainly 
extracted  from  the  Vedic  Sanhitas.  While  the  purpose  to 
exalt  the  Brahman  caste  is  evident,  it  was  not  the  gross  super- 
iority which  comes  merely  with  the  possession  of  wealth  and 
political  power,  but  a  far  better  and  more  enduring  superiority 
was  sought  and  in  fact  attained.  The  Brahmans  were  made 
the  custodians  not  merely  of  the  religious  ceremonials  but  of 
learning  as  well.  Purity  of  morals  and  of  blood  were  en- 
joined, and  the  leading  idea  at  all  times  seems  to  have  been 
to  maintain  a  genuine  intellectual  and  physical  superiority  over 
the  native  races  and  also  over  the  inferior  Aryan  castes.  The 
three  original  Aryan  castes  Brahmans,  Cshattriyas  and  Vaisyas 
all  observed  the  same  domestic  rites  at  birth,  first  feeding  of 
rice,  investure  with  the  sacred  thread,  marriage,  funerals,  etc. 
The  most  important  of  these  observances  was  the  upanayana 
or  conducting  the  boy  to  his  teacher.  Connected  with  this 
was  the  ceremony  of  investing  with  the  sacred  cord,  which 
was  worn  over  the  left  shoulder  and  under  the  right  arm, 
varying  in  material  according  to  the  class  of  the  wearer. 
This  was  the  preliminary  to  his  initiation  into  the  study  of 
the  Veda,  the  management  of  the  sacred  fire,  the  knowledge 
of  the  rites  of  purification,  and  the  invocation  to  the  sun, 
which  he  must  repeat  morning  and  evening. 

The  steps  by  which  the  principles  of  Brahmanical  law  were 
extended  and  enforced,  throughout  not  only  Hindostan  but 
farther  India  as  well,  cannot  be  traced  historically,  but  certain 
it  is  that  the  code  of  Manu,  modified  by  and  adapted  to  local 
conditions  and  customs,  forms  the  basis  of  the  social  or- 
ganization of  the  many  races  of  India.  While  the  system  of 
castes  is  often  spoken  of  as  the  most  rigid  and  inflexible  in- 
stitution ever  established,  it  seems  to  have  been  so  moulded  as 
to  adapt  itself  to  all  the  varying  conditions  of  that  most 
varied  aggregation  of  people,  and  in  matters  of  belief  the 
Indian  pantheon  appears  at  one  time  or  another  to  have  had 


INDIA  177 

a  place  for  every  god  and  religious  ceremonial,  a  form  suited 
to  the  prejudice  of  every  clan. 

The  Brahmanical  codes  were  never  dependent  for  their 
enforcement  on  any  particular  ruler  or  ordinary  governmental 
agency.  Their  principles  were  inculcated  into  all  classes  by 
the  teachers,  who  acted  also  as  judges  in  controversies  aris- 
ing among  the  people. 

The  first  powerful  attack  on  the  influence  of  the  Brahmans 
resulted  from  the  teachings  of  Gautama  in  the  sixth  century 
B.C.  He  was  the  son  of  the  chief  of  the  Sakyas,  an  Aryan 
clan  dwelling  about  one  hundred  miles  north  from  Benares, 
and  was  himself  of  the  Cshatriya  caste.  Having  abandoned 
all  the  privileges  of  his  station  and  formulated  his  system  of 
religion,  he  proceeded  to  teach  it  as  a  mendicant,  begging 
his  subsistence  wherever  he  went.  He  sought  to  establish  no 
new  government  or  organization  of  society,  but  to  teach  men 
the  way  to  permanent  peace  and  happiness,  to  rest  in  Nirvana. 
He  taught  the  Brahman  doctrine  of  the  transmigration  of 
the  soul,  and  that  existence  must  be  endured  till  the  soul  be- 
came pure  and  free  from  all  evil  passions  and  desires.  The 
purity  and  loftiness  of  his  doctrines  are  fairly  expressed  in 
the  following  extract  from  the  Buddhist  Scriptures.  Answer- 
mg  the  question  as  to  what  he  considered  the  greatest  blessing 
he  said,  "i.  To  serve  wise  men  and  not  fools,  to  give  honor 
to  whom  honor  is  due,  this  is  the  greatest  blessing.  2.  To 
dwell  in  a  pleasant  land,  to  have  done  good  deeds  in  a  former 
birth,  to  have  right  desires  for  one's  self,  this  is  the  greatest 
blessing.  3.  Much  insight  and  much  education,  a  complete 
training  and  pleasant  speech,  this  is  the  greatest  blessing. 
4.  To  succor  father  and  mother,  to  cherish  wife  and  child,  to 
follow  a  peaceful  calling,  this  is  the  greatest  blessing.  5.  To 
give  alms  and  live  righteously,  to  help  one's  relatives  and  do 
blameless  deeds,  this  is  the  greatest  blessing.  6.  To  cease 
and  abstain  from  sin,  to  eschew  strong  drink,  not  to  be 
weary  in  well  doing,  this  is  the  greatest  blessing.  7.  Rever- 
ence and  lowliness,  contentment  and  gratitude,  the  regular 
hearing  of  the  law,  this  is  the  greatest  blessing.  8.  To  be 
long  suffering  and  meek,  to  associate  with  members  of  the 


178  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Sangha,  religious  talk  at  due  seasons,  this  is  the  greatest 
blessing.  9.  Temperance  and  chastity,  a  conviction  of  the 
four  great  truths,  the  hope  of  Nirvana,  this  is  the  greatest 
blessing.  10.  A  mind  unshaken  by  the  things  of  the  world, 
without  anguish  or  passion  and  secure,  this  is  the  greatest 
blessing.  11.  They  that  act  like  this  are  invincible  on  every 
side,  on  every  side  they  walk  in  safety  and  theirs  is  the  great- 
est blessing." 

The  teachings  of  Gautama,  though  not  directly  attacking 
the  institution  of  caste,  left  no  place  for  it.  Nirvana  was 
open  to  the  Sudra  as  well  as  the  Brahmen.  The  same  course 
of  conduct  was  enjoined  on  all  and  the  vanity  of  all  earthly 
possessions  and  power  was  a  leading  theme  in  his  teachings. 
He  organized  a  society  called  the  Sangha,  whose  members 
forsook  worldly  callings  and  taught  his  doctrines.  The 
Buddhist  monasteries,  afterward  so  numerous  wherever  his 
religion  became  established,  are  the  successors  of  this  society, 
though  the  practices  and  doctrines  of  the  early  time  have 
been  much  corrupted.  The  new  religion  was  spreading  among 
the  tribes  of  Northern  India  at  the  time  of  Alexander's  in- 
vasion 327  B.C.  but  had  not  become  general. 

From  the  Greek  historians  we  gain  the  first  historical  ac- 
counts of  India  as  seen  through  the  eyes  of  Europeans.  The 
impression  was  of  a  country  of  vast  wealth  and  numerous 
people.  The  most  potent  monarch  Alexander,  encountered 
was  Porus,  whose  dominions  appear  to  have  been  in  the 
Eastern  part  of  the  Punjab.  His  force  is  stated  at  30,000 
infantry,  4,000  cavalry,  200  elephants  and  300  war  chariots, 
though  the  combined  forces  of  the  Oxydracae  and  Malli  which 
Alexander  afterward  encountered  are  said  to  have  amounted 
to  90,000.  Alexander's  conquests  extended  only  into  the 
Punjab  and  did  not  prove  permanent.  Following  the  Greek 
invasion  Chandra  Gupta  founded  his  empire  in  what  is  now 
the  province  of  Behar  with  his  capital  at  Patna.  Seleucus, 
who  succeeded  on  the  death  of  Alexandria  323  B.C.  to  the 
Empire  of  the  East,  was  unable  to  maintain  his  authority  in 
India  and  finally  concluded  an  alliance  with  Chandra  Gupta, 
giving  him  his  daughter  in  marriage  and  sending  Megasthenes 


INDIA  179 

as  an  ambassador  to  reside  at  his  court.  Megasthenes  wrote 
a  full  account  of  the  condition  of  society  in  India  at  that  time, 
and  his  account  of  the  system  of  castes  corresponds  in  the 
main  with  that  obtained  later  through  Indian  sources.  He 
divides  the  people  into  seven  classes,  viz.  philosophers,  hus- 
bandmen, shepherds,  artisans,  soldiers,  inspectors  and  coun- 
sellors of  the  king. 

He  commented  favorably  on  the  absence  of  slavery,  the 
chastity  of  the  women  and  the  courage  of  the  men.  Each 
village  was  a  little  republic,  owning  the  land  by  a  common 
title,  though  tilling  in  separate  tracts.  The  people  were  truth- 
ful, sober  and  industrious,  living  peaceably  in  their  com- 
munities. India  he  says  was  then  divided  into  ii8  kingdoms. 
General  descriptions  of  a  country  so  vast  as  India  must  then 
have  been  very  imperfect.  Though  the  disposition  of  the 
people  was  peaceable,  wars  between  the  petty  kingdoms  oc- 
curred, resulting  in  the  rise  and  fall  of  rulers  and  the  ag- 
grandisement of  one  at  the  expense  of  another. 

The  kingdom  founded  by  Chandra  Gupta  was  extended 
under  his  grandson  Asoka  over  the  whole  of  Northern  India. 
After  a  bloody  early  career,  in  which  among  the  deeds 
charged  to  him  is  that  of  ordering  the  slaughter  of  all  his 
brothers  but  one,  in  the  year  257  B.C.  he  became  converted 
to  the  Buddhist  faith.  He  was  as  vigorous  in  inculcating  the 
new  religion  as  he  had  been  in  war,  and  Buddhist  monasteries 
multiplied  all  over  his  dominions.  He  sent  ambassadors  to 
Egypt,  Cyrene,  Syria  and  Macedonia.  At  his  death,  after  a 
long  and  prosperous  reign,  his  empire  fell  to  pieces.  One 
of  the  prominent  features  of  Asoka's  reign  was  the  great 
council  of  Buddhists,  held  at  his  call  244  B.C.,  at  which  the 
canons  of  the  faith  were  discussed  and  promulgated  in  what 
is  termed  by  northern  Buddhists  the  Lesser  Vehicle,  in  con- 
tradistinction to  the  Greater  Vehicle,  a  more  voluminous  com- 
pilation, engrafting  many  new  practices  and  articles  of  faith, 
w^hich  was  settled  by  the  fourth  and  last  great  council  held 
in  the  reign  of  Kanishka,  who  ruled  northwestern  India,  as 
well  as  a  considerable  district  lying  to  the  north  and  west  of 
it.  The  Greater  Vehicle  became  the  law  for  the  Thibetan  and 
Chinese  followers  of  Buddha. 


l8o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

About  126  B.C.  the  Tartars  are  said  to  have  driven  the 
Greeks  from  Bactria  and  their  settlements  from  the  Punjab. 
The  empire  of  Kanishka  is  styled  Scythic,  and  there  seems 
to  have  been  at  that  period  an  extensive  movement  of  Scyth- 
ians into  India.  They  did  not  meet  with  a  peaceful  reception, 
and  the  princes  and  warriors  who  successfully  resisted  their 
encroachments  are  celebrated  by  Hindu  writers.  They  ap- 
pear however  to  have  maintained  a  part  of  their  conquests 
and  the  modern  Jats  and  some  tribes  of  Rajputs  are  said  to 
be  of  Scythic  stock. 

Later  came  invasions  of  Huns.  To  trace  the  varying  for- 
tunes of  the  natives  and  their  invading  enemies  is  a  great 
and  exceedingly  difficult  task,  not  contemplated  in  this  work. 
Recurring  periods  of  bloodshed  and  the  desolations  of  war 
interrupted  the  calm  devotions  of  the  faithful  followers  of 
the  teacher  of  peace  and  good  works.  Notwithstanding  the 
inculcation  of  the  injunction  not  to  kill,  the  people  of  India 
stood  their  ground  and  on  the  whole  seem  to  have  had  rather 
the  better  of  the  struggle  with  the  ruder  people  from  the 
northwest.  Aryan  and  non-Aryan  people  alike  were  engaged 
in  opposing  the  invaders,  as  well  as  in  warring  with  each 
other  from  time  to  time.  In  about  630  a  Chinese  pilgrim 
found  both  the  northern  and  southern  sects  of  Buddhists  in 
India  and  listened  to  their  debates  at  various  places. 

Brahmanism  continued  in  spite  of  the  growth  of  the  new 
religion.  It  was  doubtless  materially  aided  by  the  frequently 
recurring  wars,  when  fierce  war  gods,  who  were  given  places 
in  the  pantheon,  were  deemed  more  serviceable  than  the  pas- 
sive virtues  of  Buddha.  About  the  seventh  and  eighth  cen- 
turies there  seems  to  have  been  a  revival  of  Brahmanism,  and, 
at  the  time  of  the  Mohammedan  invasion,  Buddhism  had 
nearly  disappeared  from  India. 

The  first  Mohammedan  invasion  was  in  664,  only  thirty- 
two  years  after  the  death  of  the  Prophet,  but  it  was  without 
permanent  results.  In  711  Sind  was  invaded  and  subjected  to 
the  rule  of  Waldi  I,  Caliph  of  Damascus.  In  750  the  Moham- 
medans were  driven  out.  No  further  invasion  is  mentioned 
until  977,  when  the  Punjab  was  made  tributary  to  Sabuktagin 


INDIA  i8i 

Sultan  of  Ghazni.  His  son  Mahmud  invaded  India  repeatedly 
with  his  armies  and  fought  successfully  great  battles,  as  the 
result  of  which  his  authority  was  extended  as  far  as  the 
Ganges.  Khusru,  a  son  of  the  last  of  the  Ghazni  dynasty, 
having  been  driven  out  by  the  Afghans  of  Ghor,  founded  at 
Lahore  a  short-lived  Mohammedan  dynasty,  but  the  Afghan 
Mussulman  waged  successful  war  against  his  son  and  took 
him  prisoner.  Under  Muhammed  Ghori  the  new  empire  was 
extended  by  successive  conquests  over  the  entire  northern 
plain  as  far  as  the  Brahmaputra.  At  the  death  of  Muham- 
med the  viceroy,  through  whom  he  had  governed  India,  pro- 
claimed himself  sultan  at  Delhi.  In  1294  Allah-ud-din  Khelji 
raised  himself  to  the  throne  of  Delhi.  He  extended  his  do- 
minions to  the  south  and  his  armies  penetrated  to  the  extreme 
south  of  the  Peninsula.  The  descendants  of  Allah-ud-din 
occupied  the  throne  but  five  years  when  in  1321  Gheyas-ud- 
din  Tuglak,  said  to  have  been  a  Turk,  established  a  dynasty 
which  lasted  till  the  invasion  of  Timur,  seventy  years  later. 

The  period  of  the  rule  of  this  dynasty  was  one  of  magnifi- 
cence at  court,  of  war  and  tyranny.  Revolts  against  the 
sultan  in  various  quarters  prepared  the  way  for  Timur,  who 
invaded  India  in  1398  and  gained  most  unenviable  fame  for 
his  cruel  slaughter  and  enslavement  of  the  people.  The  city 
of  Delhi  and  many  other  towns  were  sacked,  and  the  people 
of  all  ages  and  sexes  indiscriminately  slaughtered.  Great 
numbers  of  captives  were  taken  back  to  his  capital  at  Samar- 
kand as  slaves.  He  established  no  permanent  government 
and  his  invasion  was  followed  by  a  period  of  small  states 
without  any  great  authority. 

In  1525  Baber,  the  fifth  in  descent  from  Timur,  by  invita- 
tion of  the  governor  of  the  Punjab,  invaded  India  and 
founded  the  great  Mughal  empire,  which  however  was  not 
generally  recognized  during  his  life,  but  his  actual  authority 
extended  over  only  a  limited  and  not  clearly  defined  territory. 
His  son  Humayun  was  driven  out  of  India  by  Sher  Shah,  a 
native  of  Bengal,  who  established  an  extensive  though  brief 
authority  over  Hindostan.  Akbar,  the  son  of  Humayun,  ap- 
pears the  real  founder  of  the  Mughal  empire,  which  lasted 


i82  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

till  finally  overthrown  by  the  British.  Humayim  died  in  1556 
when  Akbar  was  fourteen  years  old. 

Under  the  guardianship  of  Bairam  Kahn  he  first  established 
his  authority  in  the  Punjab  and  on  the  upper  Ganges  about 
Delhi  and  Agra.  From  this  basis  he  extended  his  dominion 
over  the  greater  part  of  India.  He  was  not  only  a  great  con- 
queror but  a  noted  civil  governor.  He  reformed  the  system 
of  taxation  in  such  manner  as  to  make  the  burden  fall  more 
equitably  than  before  and  at  the  same  time  produce  ample 
revenue.  He  established  many  public  schools,  was  tolerant  to 
all  religions,  and  it  is  said  that  though  raised  a  Mohammedan 
he  had  no  fixed  religious  belief.  In  his  military  system  he 
employed  native  Rajputs  on  equal  terms  with  his  Mughals. 
His  favorite  wife  was  a  Rajput  princess.  He  was  superior 
to  all  his  predecessors  in  his  understanding  of  the  character 
and  prejudices  of  the  people  over  whom  he  ruled  and  he  suc- 
cessfully adapted  his  system  to  the  vast  mixed  population  of 
his  dominions.  Under  his  grandson  Shah  Jahan  the  empire 
reached  its  period  of  greatest  magnificence  of  which  many 
noted  monuments  remain. 

The  Taj  Mahal  at  Agra,  erected  as  the  mausoleum  of  his 
favorite  wife,  is  regarded  as  a  model  of  beauty  and  purity  in 
architecture  never  surpassed.  Aurangzeb  succeeded  his 
father.  Shah  Jahan,  in  1658  and  before  his  death  extended 
the  empire  over  the  Deccan  and  to  the  extreme  south  of  the 
peninsula.  While  his  territory  was  extended,  the  fibre  of  his 
government  seems  to  have  weakened,  and  after  his  death  the 
empire  fell  in  pieces  never  again  to  be  reconstructed.  Petty 
sovereigns  divided  the  dominion  and  exercised  authority  over 
its  various  districts.  In  1500  the  first  permanent  lodgement  of 
Europeans  in  Hindostan  was  effected  by  the  Portuguese  on 
the  Malabar  coast.  For  a  century  thereafter  they  enjoyed  a 
monopoly  of  oriental  trade.  The  Dutch  were  the  first  to 
break  this  monopoly  and  were  soon  followed  by  the  English 
and  French,  whose  struggle  for  supremacy  will  not  now  be 
considered. 

While  it  seems  altogether  natural  and  proper  to  speak  of 
India  as  a  single  country  and  to  consider  its  history  as  an 


IXDIA  183 

entirety,  the  foregoing  brief  summary  of  some'  leading  events 
omits  mention  of  princes  without  number,  who  from  time  to 
time  ruled  over  more  or  less  of  the  country.  From  the  earliest 
times  the  wealth  of  India  has  been  proverbial,  and  it  has  at- 
tracted alike  the  traders  and  the  armed  invaders.  The  latter 
have  been  of  two  classes,  those  who  came  merely  to  add  ter- 
ritory to  a  foreign  empire,  and  those  who  came  to  gain  set- 
tlements in  the  country.  The  Aryan  movement  is  the  earliest 
of  which  records  have  been  preserved,  but  they  found  the 
country  already  peopled.  When  and  whence  those  early  peo- 
ple came  upon  the  scene  cannot  be  told. 

While  the  original  Aryan  invaders  do  not  appear  to  have 
ever  established  a  government  over  the  whole  country  or  even 
over  the  greater  portion  of  it,  they  did  impose  their  religion, 
their  laws  and  customs  in  nearly  all  parts  of  the  peninsula. 
Some  of  the  early  tribes,  however,  never  accepted  their  teach- 
ings and  their  religion  has  been  corrupted  with  local  super- 
stitions to  such  an  extent  in  many  places  as  hardly  to  be 
recognizable.  Nor  are  their  laws  governing  marriage,  in- 
heritance and  property  rights  in  general  uniformly  followed. 
On  the  contrary  local  superstitions  and  customs  have  pro- 
duced infinite  variety  of  worship,  ceremony  and  local  law. 

The  practice  of  burning  widows  with  the  dead  bodies  of 
their  husbands,  called  suttee,  is  chargeable  to  the  Brahmans 
and  was  followed  by  people  of  the  highest  classes.  It  was 
esteemed  a  virtuous  act  for  the  widow  to  follow  her  husband 
and  the  meaning  of  the  word  suttee  or  sati  is  a  virtuous  wife. 
Though  this  custom  is  an  ancient  one  it  is  not  sanctioned  by 
the  Vedas  or  the  code  of  Manu.  It  was  practiced  by  other 
ancient  people,  notably  the  Scyths.  Some  of  the  Kandh  clans 
practiced  human  sacrifice  in  most  cruel  and  revolting  manner 
until  very  recent  times. 

The  institution  of  caste  has  shown  the  most  marked  staying 
qualities,  and  the  original  simple  divisions  of  the  Aryan 
invaders  into  four  castes  has  been  followed  by  more  than  a 
thousand  different  divisions,  partaking  of  the  nature  if  not 
strictly  designated  as  castes.  Very  few  of  the  people  of  all 
India  are  wholly  exempt  from  caste  distinctions.     Some  of 


i84  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  wild  hill  tribes  are  said  to  have  no  castes,  and,  of  course, 
Europeans  and  other  new  comers  into  the  country  cannot  be 
said  to  have  castes.  They  are  nevertheless  classed  by  them- 
selves by  the  Hindus,  and  the  system  of  classification  is  so 
deeply  rooted  that,  as  to  the  great  mass  of  the  people  of  India, 
all  kinds  of  people  are  assigned  to  some  class,  and  the  observ- 
ance of  their  own  castes  by  the  Hindus  operates  to  a  great 
extent  in  fixing  a  caste  for  all  newcomers.  The  main  excep- 
tion to  the  prevalence  of  strict  castes  is  among  the  Moham- 
medan population.  As  they  look  to  the  Koran  for  their  law 
and  as  Mohammed  made  no  distinction  of  race,  color  or  con- 
dition among  his  followers,  the  true  believer  has  no  .basis  for 
caste  distinctions.  There  are,  however,  especially  among  the 
Mongolian  and  negroid  races,  many  nominal  Mohammedans, 
who  adopt  many  Hindu  customs  and  observe  caste  restrictions. 
Of  the  whole  population  nearly  three-fourths  are  classed  as 
Hindus  in  religion,  and  nearly  three-fourths  of  the  remainder 
as  Mohammedans.  The  natural  tendency  for  those  engaged 
in  a  particular  profession  or  business  to  associate  and  com- 
bine, because  of  similar  tastes  and  common  interests,  has 
supplemented  the  policy  of  the  early  Aryans,  which  seems  to 
have  aimed  mainly  at  the  maintenance  of  the  supremacy  of 
the  conquering  race  and  of  the  rank  of  the  Brahmanical  order. 
Neither  in  religion  nor  in  law  has  a  uniform  system  ever 
prevailed  over  the  whole  country.  Different  modifications  of 
the  pantheon  of  gods  have  been  made  to  meet  the  demands  of 
different  tribes,  till  under  the  general  head  of  Hindus  are 
included  all  grades  and  shades  of  faith  and  ceremony,  from 
those  of  the  high  minded  Brahman,  who  seeks  by  rigid  fast- 
ing, meditation  and  prayer  to  divest  his  soul  of  all  evil  pas- 
sions and  worldly  desires,  in  order  that  he  may  find  rest  with 
the  divine  essence,  to  the  Worshippers  of  the  destroyer,  who 
seek  by  human  sacrifices  to  avert  the  wrath  of  wicked  gods. 
The  leading  features  of  the  caste  system  seem  to  be  adapted 
to  all  races  and  conditions.  Not  only  do  those  belonging  to 
the  higher  castes  insist  on  its  rigid  maintenance,  but  those 
belonging  to  the  inferior  ones  find  that  it  accords  with  their 
wishes  and   incHnations.     The  old   saying  that   ''birds   of   a 


INDIA  185 

feather  flock  together"  expresses  the  natural  tendency  of  those 
occupying  similar  social  position  or  engaged  in  similar  pur- 
suits to  associate,  and  in  India  this  natural  tendency  has  been 
crystalized.  The  leading  advantages  of  the  system  would 
seem  to  be  that  it  tends  to  make  the  low  born  content  with 
their  lot,  and  that  each  son  is  brought  up  to  follow  the  calling 
of  his  father,  by  which  means  each  profession  and  calling  will 
be  filled  by  men  better  educated  and  qualified  than  where 
there  is  a  constant  shifting  of  members  of  the  family  from 
one  calling  to  another.  The  reality  of  even  this  advantage 
may  be  debatable.  On  the  other  hand  to  western  men  the 
tyranny  of  the  system  seems  intolerable.  Its  rigidity  prevents 
spontaneity  and  progressiveness,  and  removes  all  hope  from 
the  low  born  of  rising  out  of  his  class.  The  evolution  of  the 
race  seems  to  require  selection  from  the  whole  mass  of  popu- 
lation, if  a  maximum  of  vigor  is  to  be  maintained  among  the 
leaders.  Dynasties  of  rulers  invariably  degenerate  and  either 
die  out  or  are  cast  out  because  of  their  weakness  or  vice. 
Though  the  village  system  is  regarded  by  many  writers  on 
law  and  government  as  primitive  and  an  embryonic  govern- 
ment, it  prevailed  over  most  of  India  till  the  advent  of  the 
British,  and  is  still  maintained  throughout  a  great  part  of 
the  country.  The  details  of  the  system  vary,  its  leading  char- 
acteristics are  a  well  defined  district  of  land  occupied  by  a 
community,  whose  local  affairs  are  regulated  by  officers  usu- 
ally chosen  by  the  people  but  sometimes  hereditary.  In  a 
large  percentage  of  the  villages  the  title  to  the  land  was  held 
in  common  and  taxes  to  the  sovereign  were  paid  by  the  com- 
munity as  a  unit  from  the  proceeds  of  the  harvest.  The  vil- 
lage authorities  assigned  the  land  for  tillage  to  the  various 
citizens,  and  adjudged  all  controversies  betw^een  them.  The 
tillage  was  usually  separate,  even  where  the  title  was  in  com- 
mon. In  other  villages  the  land  was  held  in  severalty,  but  in 
dealings  with  the  sovereign  power  and  in  the  payment  of 
taxes  it  w^as  regarded  as  the  unit.  This  system  is  not  patri- 
archal, though  it  possibly  may  have  been  so  in  its  earliest 
form. 

The  kings  and  rulers  seem  to  have  regarded  the  people  as 


i86  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

not  entitled  to  much  in  return  for  the  taxes  paid  and  services 
rendered  the  sovereign.  Aside  from  defending  them  against 
outside  foes,  the  government  never  attempted  much  in  their 
behalf.  In  public  works  there  is  nothing  worthy  of  mention 
but  palaces,  temples  and  the  great  roads  constructed  by  the 
Mughals.  Though  the  people  of  the  higher  castes,  the  twice 
born,  have  always  enjoyed  some  advantages  of  education,  it 
has  been  given  them  by  the  Brahman  caste  and  private  teach- 
ers, not  by  the  king.  The  fertility  of  the  soil  and  the  patient 
industry  of  the  people  have  led  to  most  excessive  and  burden- 
some taxation,  to  great  pomp  and  luxury  in  the  palaces  and 
to  extreme  distress  among  the  poor  when  crops  have  failed, 
as  they  occasionally  do.  One-third  of  the  gross  yield  of  the 
land  seems  to  have  been  regarded  as  about  the  right  proportion 
to  take,  and  under  the  Mughals  this  was  exacted  from  the 
villagers  and  is  at  this  day  by  the  British  in  many  parts  from 
the  best  lands. 

Nowhere  else  on  the  face  of  the  earth  can  be  found  so  dense 
a  population,  covering  such  a  vast  extent  of  country,  living 
under  an  ancient  system  of  laws  and  yet  without  a  general 
government,  as  existed  in  India  at  the  advent  of  the  British. 
China  during  most  of  its  history  has  had  a  well  organized 
governmental  system,  whose  authority  has  been  recognized 
over  most  or  all  of  its  territory.  Its  people  also  have  been 
mainly  of  one  race.  India  exhibits  the  peculiar  spectacle  of  a 
vast  empire,  with  endless  diversity  of  races,  speaking  many 
different  languages,  yet  recognizing  and  obeying  in  its  main 
precepts  a  code  of  laws  promulgated  in  the  dim  past  by  un- 
known persons,  a  code  which  was  never  promulgated  by  a 
sovereign  power  having  dominion  over  the  ancestors  of  the 
people  or  the  land  in  which  they  dwell.  It  owes  its  authority 
mainly  to  the  teachings  of  the  Brahmans  and  to  its  adoption  as 
the  rule  of  decision  by  the  judges  and  rulers  in  past  ages,  as  it 
has  been  adopted  and  followed  by  the  British  in  recent  times. 
Some  analogies  to  this  may  be  found  in  the  adoption  of  the 
principles  of  the  Roman  civil  law  by  countries  never  subject 
to  the  empire,  and  in  the  adoption  of  the  Koran  as  the  law 
of  all  Mohammedans,  but  in  the  one  case  the  system  was 


INDIA  •  187 

gradually  developed  under  a  strong  government  ruling  a  vast 
empire,  and  in  the  other  the  authority  of  the  law  is  consequent 
on  religious  faith. 

The  area  of  the  country  we  have  been  considering  is  nearly 
a  million  and  a  half  square  miles  and  it  now  has  a  population 
of  nearly  or  quite  250,000,000.  Among  this  vast  mass  are 
remnants  of  what  are  believed  to  be  the  earliest  inhabitants  of 
the  country,  whose  lowest  type  is  exhibited  by  the  savage 
Andaman  islanders,  wholly  devoid  of  all  civilization.  Superior 
to  these  yet  still  very  low  in  the  scale  of  humanity  are  the 
monkey  faced  tribes  of  the  south,  the  Bihls  and  other  pre- 
datory hill  tribes  and  the  almost  numberless  fragmentary 
remnants  of  races  that  in  past  ages  may  have  held  extensive 
districts.  Above  these  are  the  industrious  descendants  of 
Mongolian  stocks,  the  Dravidians,  the  Indo  Chinese,  the  Af- 
ghans, Mughals,  Arabs,  Persians  and  the  proud  descendants 
of  that  race  which  composed  the  Vedas  and  promulgated  the 
codes.  This  vast  empire  is  now  subject  to  the  government  of 
a  little  island  on  the  most  remote  border  of  the  hemisphere. 
The  government  of  the  British  will  be  considered  in  another 
place. 

•  Though  Great  Britain  has  long  maintained  its  sovereignty 
over  India  it  has  never  attempted  to  impose  its  system  of  laws 
on  the  people.  The  ancient  stratification  of  society  still  per- 
sists and  the  code  of  Manu  is  still  the  basis  of  the  law  adminis- 
tered in  the*  courts.  This  code  is  so  remarkable  in  its  precepts 
and  has  so  profoundly  influenced  the  vast  population  of  India 
for  thousands  of  years  that  it  is  well  worthy  the  careful  study 
of  every  investigator  in  the  field  of  human  laws.  A  summary 
of  its  provisions  with  copious  extracts  from  the  more  striking 
parts  will  be  found  in  the  Appendix. 

The  student  who  seeks  a  comprehensive  knowledge  of  the 
rules  actually  applied  throughout  all  that  vast  country,  extend- 
ing from  the  valley  of  the  Indus  to  Siam,  encounters  a  most 
perplexing  multiplicity  of  details.  The  Code  of  Manu  is  recog- 
nized as  the  foundation  of  the  laws  of  Hindostan  and  also  of 
Burmah.  Siam  and  Ceylon,  yet  there  is  wide  divergence  in  the 
practical  application  of  it  in  different  places. 


i88  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

As  a  result  of  the  teachings  of  Gautama  the  Code  of  Manu, 
though  still  recognized  as  the  basis  of  the  laws,  was  greatly 
modified  in  those  districts  where  the  Buddhist  faith  prevailed. 
The  Burmese  code,  called  the  Damathat,  gives  the  primary 
classification  of  men  as  Chiefs,  Brahmans,  wealthy  and  poor, 
and  elsewhere  the  mercantile  class  is  mentioned  as  a  distinct 
order.  In  the  twenty-third  section  of  the  fourth  volume  of 
the  Burmese  code,  the  Royal  family  is  mentioned  as  the  high- 
est class,  and  other  relations  of  the  King,  the  great  Chiefs, 
ministers  or  lords,  the  lesser  lords,  lords  of  lower  degree, 
wealthy  class  Brahmans,  thoogyees  of  villages,  governors,  land 
measurers,  and  those  whom  the  King  had  advanced,  as  con^ 
stituting  the  next  class.  The  second  class  and  the  mercantile 
are  each  divided  into  the  great,  middle  and  lesser.  The  right 
of  the  King  to  raise  from  the  lower  to  the  higher  orders  is 
asserted  and  the  rigid  rules  of  inherited  castes  do  not  obtain. 
Though  the  system  evolved  by  the  early  Aryan  invaders 
spread  over  all  India  as  the  basis  of  all  the  written  laws,  in 
the  east  it  has  been  modified  by  the  influence  of  Buddhism 
and  the  Chinese  and  in  the  west  by  Mohammedanism.  Ow- 
ing to  the  lack  of  a  single  governing  force  having  authority 
over  the  whole  country  no  version  of  the  code  has  at  any 
time  found  full  recognition,  even  throughout  the  whole  of  the 
Indian  peninsula,  and  the  actual  administration  of  the  law 
has  at  all  times  been  more  or  less  dependent  on  the  will  of 
despotic  rulers,  having  authority  over  more  or  less  of  the 
country,  according  to  circumstances. 

The  Burmese  code  exhibits  marked  differences  in  the  theory 
of  the  distribution  of  inheritable  property.  The  rules  given 
are  very  loose  and  indefinite.  On  the  death  of  the  father 
the  eldest  son  is  given  *'the  riding  horse,  elephant  goblet,  betel 
apparatus,  sword,  clothes  and  ornaments,  and  of  the  slaves,  the 
betel  carrier  and  two  water  carriers;  and  let  the  mother  have 
her  clothes  and  ornaments,  goblet,  betel  apparatus^  and  all 
female  slaves.  Let  the  residue  be  divided  into  four  parts,  of 
which  let  the  eldest  son  have  one  and  the  mother  and  younger 
children  have  three.  This  is  the  law  when  the  mother  does 
not  marry  again;  if  the  mother  uses  the  property  for  neces- 


INDIA  189 

sary  subsistence  let  her  have  the  right  to  do  so.  If  the  mother 
takes  another  husband  (a  thing  prohibited  by  the  code  of 
Manu),  the  portion  of  the  eldest  son,  animate  and  inanimate, 
shall  be  noted  before  witnesses  and  taken  care  of;  and  if  he 
be  too  young  to  separate  from  his  parents,  and  the  mother 
dies,  let  him  have  all  that  has  been  apportioned  to  him  above 
and,  having  divided  the  portion  of  the  mother  into  four  parts, 
let  the  stepfather  have  one  part,  and  the  eldest  son  three. 
The  original  property  and  debts  of  the  step- father  shall  not 
be  divided  but  of  the  mother's  original  debts  let  the  step- 
father pay  one-fourth;  having  valued  the  house  let  the  step- 
father have  one-fourth."    Law^s  of  Menoo,  Vol.  10,  sec.  5. 

On  the  death  of  the  mother  "let  the  eldest  son  have  one 
male  slave,  one  pair  of  good  buffaloes,  one  pair  of  oxen,  one 
foreign  and  one  Burman  goat,  with  one  pay  of  arable  land; 
with  the  exception  of  these  things  let  the  father  and  younger 
children  have  all  the  property  animate  and  inanimate." 

In  case  the  father  is  not  possessed  of  the  specific  property 
named,  compensation  in  money  is  provided  for  arid,  if  not 
able  to  pay,  less  is  to  be  given  according  to  his  means. 

On  the  death  of  the  father  the  eldest  son  only  is  assigned 
his  share.  The  younger  sons  must  wait  till  the  death  of  the 
mother. 

When  both  father  and  mother  die  leaving  only  daughters, 
the  eldest  takes  all  her  mothers  clothes  and  ornaments,  and 
all  other  property  is  divided  into  twenty  parts,  of  which  the 
eldest  takes  one.  The  balance  is  then  again  divided  into 
twenty  parts,  and  the  next  daughter  takes  one,  and  after  a 
third  division  for  a  third  daughter  the  balance  is  divided 
equally  among  all. 

Where  father  and  mother  both  die  leaving  sons  only,  the 
eldest  takes  the  clothes  and  ornaments  of  the.  father  and  the 
remaining  property  is  divided  into  tenths  of  which  he  takes 
one.  The  remainder  is  divided  into  tenths  of  which  the  sec- 
ond son  takes  one;  the  balance  is  again  divided  into  tenths 
of  which  each  of  the  others  takes  a  share,  and  the  remainder 
is  then  divided  equally  among  all. 

In  case  there  are  both  sons  and  daue^hters  the  eldest  son 


190  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

takes  the  father's  clothes  and  ornaments,  the  eldest  daughter 
the  mother's,  and  the  residue  is  then  divided  into  fifteenths 
and  distributed  to  each  according  to  age  on  the  above  prin- 
ciple till  the  seventh  distribution  has  been  made,  and  the  bal- 
ance is  then  divided  equally. 

After  these  regulations  follow  others  fixing  the  rights  of 
step-fathers  and  step-mothers,  and  children  of  the  half-blood, 
of  collateral  relation,  and  providing  for  cases  which  would 
seem  likely  to  be  rare  and  exceptional.  The  tenth  volume  of 
the  Burmese  code,  which  relates  to  the  law  of  inheritance, 
contains  eighty-one  paragraphs  and  covers  fifty-six  pages. 
Besides  these  there  are  various  provisions  on  the  same  subject 
in  other  parts  of  the  code.  The  right  of  a  woman  to  own 
property  is  generally  recognized  throughout  India,  but  with 
varying  local  regulations. 

A  compilation  of  Hindu  laws  translated  from  the  Sanskrit 
into  Persian  and  from  the  Persian  into  English  called  the 
Gentoo  Code  contains  provisions  relating  to  property  rights 
in  quite  strong  contrast  with  western  laws. 

'Tf  a  man  owes  money  to  several  creditors,  he  shall  first 
discharge  that  debt  which  was  first  contracted  and  so  in  or- 
der."   Sec.  5,  page  25. 

This  would  seem  more  just  than  the  law  which  favors  the 
hard  creditors  who  first  attaches  his  debtor's  property. 

Gifts  made  under  the  impulse  of  violent  fear,  anger,  lust, 
grief,  by  mistake,  in  jest,  by  a  child  or  an  incompetent  person, 
or  when  intoxicated  may  be  recovered  back.  In  times  of 
calamity  a  woman  may  borrow  for  necessaries  and  bind  her 
husband  to  pay  the  debt,  and  the  husband  may  at  such  a  time 
give  away  his  wife  with  her  consent.  The  father  may  also 
sell  or  give  away  his  son  with  his  consent. 

In  cases  of  partnership  capital  furnished  by  one  is  regarded 
as  equivalent  to  the  labor  of  another  and  profits  are  divided 
according  to  agreement  where  one  is  made,  but,  in  the  absence 
of  an  express  contract,  according  to  the  amount  of  capital 
contributed  and  services  rendered. 

When  robbers  go  to  a  distant  country  and  return  with  their 
booty  this  code  provides  for  its  division.    The  magistrate,  that 


INDIA  191 

is  the  ruler  of  the  district,  takes  one-tenth  to  one-sixth  of  the 
whole,  a  chief  takes  four  shares,  a  stout  man  two,  and  a  com- 
mon man  one. 

The  contracts  of  prostitutes  are  recognized  and  enforced, 
and  the  law  protects  them  from  violence  or  abuse. 

The  penalties  denounced  against  crime  by  the  Gentoo  code 
are  graded  all  the  way  from  a  small  fine  to  crucifixion,  the 
latter  punishment  being  imposed  for  highway  robbery  or 
robbery  committed  by  breaking  through  a  wall.  For  killing 
a  goat,  a  horse  or  a  camel,  a  hand  or  a  foot  shall  be  cut  ofif, 
but  this  does  not  apply  to  those  who  make  their  living  by 
butchery. 

In  the  Burmese  code  very  great  prominence  is  given  to  do- 
mestic relations  and  penalties  for  illicit  sexual  intercourse. 
The  grounds  for  separation  of  husband  and  wife  are  many, 
and  minute  provisions  are  made  for  division  of  the  property 
in  cases  of  separation. 

The  religion  of  the  Buddhists  does  not  allow  capital  punish- 
ment. This  code  shows  many  marks  of  the  influence  of  the 
Buddhist  religion,  and  punishments  are  mainly  by  fines  and 
the  use  of  the  rattan.  In  no  case  is  the  death  penalty  im- 
posed by  the  code,  though  it  is  in  fact  sometimes  inflicted  by 
despotic  rulers,  and  the  evil  passions  of  men  sometimes  find 
expression  in  bloody  deeds,  notwithstanding  the  general  ac- 
ceptance of  a  religion  of  peace. 

Perhaps  this  code  states  the  immoraHty  of  war  as  pointedly 
and  gives  it  a  more  formal  sanction  than  any  other  authori- 
tative expression  of  legal  principles. 

"When  there  has  been  a  revolution  or  change  of  rulers,  in 
a  country,  there  are  four  cases  which  may,  and  four  which 
may  not  be  prosecuted.  Of  the  cases  which  may  not  be  prose- 
cuted, they  are  murder,  obscene  language  and  assault  with 
wounding,  theft,  and  adultery;  these  are  the  four  which  shall 
not  be  prosecuted  after  a  change  of  kings.  The  five  which 
may  be  prosecuted  are  debt,  inheritance,  disputes  regarding 
lands  the  property  of  convents  (church  property)  hereditary 
slaves,  and  deposits;  these  are  the  five  which  may  be  prose- 
cuted notwithstanding  a  change  of  rulers."  Vol.  2,  Sec.  8, 
page  43- 


192  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

No  similar  provision  is  contained  in  the  code  of  Mann. 

By  this  law  the  abominable  crimes  incident  to  war  are  ex- 
cused, while  the  arbitrary  and  unjust  rules  of  slavery  and 
inheritance  continue  without  regard  to  the  fortunes  of  war. 
Though  the  principles  of  this  section  are  not  generally  em- 
bodied in  the  published  codes  of  the  Christian  states,  they  are 
recognized  and  enforced  in  practice.  Except  when  committed 
in  violation  of  military  discipline,  the  grossest  crimes  of  sol- 
diers go  unpunished. 

Not  only  have  the  Indian  law-makers  evolved  an  elaborate 
body  of  written  rules  for  the  determination  of  the  rights  of 
parties,  but  rules  of  pleading,  evidence,  presumption  and  prac- 
tice have  also  been  established.  By  the  G^ntoo  code  a  person 
cannot  be  brought  into  court  when  celebrating  a  marriage, 
while  sick,  or  engaged  in  religious  duties  or  as  a  vakeel,  at- 
torney, and  generally  if  at  work  he  must  be  allowed  to  finish 
his  task.  A  party  may  appear  in  court  either  in  person  or  by 
attorney,  except  in  cases  of  murder,  robbery,  adultery,  eating 
prohibited  food,  false  abuse,  false  witness  and  one  other 
disgusting  offence  in  which  the  principals  must  answer  in 
person.  When  the  plaintiff  and  defendant  come  before  the 
court  the  plaintiff  shall  state  his  case  so  "that  the  words  be 
few  and  the  meaning  extensive,"  and  that  the  first  and  last 
parts  be  well  connected  and  consistent.  If  he.  states  his  case 
in  writing  the  defendant  must  then  do  so.  Numerous  rules 
of  pleading  are  given,  and  mistakes  subject  the  party  making 
them  to  a  fine,  but  not  to  the  loss  of  his  rights.  The  defend- 
ant must  answer  within  seven  days  and  if  he  fails  to  do  so 
judgment  may  be  rendered  against  him.  A  person  accused 
of  murder,  robbery,  scandalous  abuse  of  a  magistrate,  calling 
a  woman  unchaste,  destruction  of  valuable  goods,  criminal 
conversation  with  the  wife  of  the  father  other  than  the  mother 
of  the  accused,  or  brought  to  answer  a  matter  concerning  a 
cow,  a  dispute  over  a  slave  girl,  or  drinking  wine,  must  answer 
at  once.  In  all  other  causes  the  defendant  may  have  delay 
but  the  accuser  shall  in  no  case  make  delay,  except  in  case  of 
calamity.  The  Burmese  version  of  the  code  fixes  a  general 
statute  of  limitations,  barring  claims  for  money,  lands  and 


INDIA  193 

slaves  held  adversely  for  ten  years;  but  in  cases  relating  to 
lands  and  slaves  given  to  pagodas  temples  and  convents, 
boundary  marks  between  cities  or  villages  and  a  slave  de- 
scended in  the  family  from  forefathers  of  the  owner,  and 
whose  class  is  unknown,  there  is  no  limitation  of  action.  The 
Gentoo  code  prescribes  eleven  years  for  chattels  and  twenty- 
one  years  for  land,  where  the  plaintiff  is  under  no  disability, 
with  a  longer  limitation  in  cases  of  trust,  extending  to  sixty 
years  where  it  relates  to  land.     By  this  code  it  is  provided : 

"When  an  arbitrator  of  discernment  hears  any  affair  he 
shall  first  demand  of  the  plaintiff  'What  is  your  claim?'.  The 
plaintiff  shall  then  relate  his  claim.  Afterward  he  shall  de- 
mand of  the  defendant  'What  answer  do  you  return  in  this 
case?'.  The  defendant  also  shall  then  repeat  his  answer. 
Upon  thus  having  heard  the  accounts  of  both  plaintiff  and 
defendant,  he  who  thoroughly  investigates  the  nature  of  the 
affair  is  called  an  arbitrator  of  discernment,  and  such  an  arbi- 
trator as  this  shall  be  chosen."    Chapter  3,  Sec.  i,  page  103. 

"When  two  persons  upon  a  quarrel  refer  to  arbitrators 
those  arbitrators  at  the  time  of  the  examination  shall  observe 
both  the  plaintiff  and  the  defendant  narrowly  and  take  notice, 
if  either  and  which  of  them  when  he  is  speaking,  hath  his 
voice  falter  in  his  throat  or  his  color  change  or  his  forehead 
sweat,  or  the  hair  of  his  body  stand  erect,  or  a  trembling 
come  over  his  limbs,  or  his  eyes  water,  or  if,  during  the  trial, 
he  cannot  stand  still  in  his  place,  or  frequently  licks  or  moist- 
ens his  tongue  or  hath  his  face  grow  dry,  or  in  speaking  to 
one  point  wavers  and  shuffles  off  to  another,  or  if  any  per- 
son puts  a  question  to  him,  is  unable  to  return  an  answer ;  from 
the  circumstances  of  such  commotions  they  shall  distinguish 
the  guilty  party."     Page  119. 

Rules  of  evidence  are  quite  different  from  those  prevailing 
in  the  West.  One  may  give  false  testimony  to  preserve  life, 
and  falsehood  employed  to  procure  a  marriage,  obtain  sexual 
intercourse  or  benefit  a  Brahman  are  excusable.  Page  130. 
Writings  may  be  proved  by  a  comparison  of  hands.  Second- 
ary evidence  in  the  form  of  heresay  from  eyewitnesses  is 
allowed. 


194  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

*'A  minor  until  fifteen  years  of  age,  one  single  person,  a 
woman,  a  man  of  bad  principles,  a  father,  or  an  enemy,  may 
not  be  a  witness,  but  if  the  father  and  the  enemy  are  men  of 
good  disposition  and  speakers  of  truth,  and  men  are  well  ac- 
quainted with  the  goodness  of  their  dispositions  and  veracity, 
these  two  persons  may  be  witnesses."     Page  124. 

The  legal  profession  of  which  no  mention  is  made  in  the 
code  of  Manu  is  not  practiced  gratuitously  as  it  was  in  ancient 
Rome,  but  the  lawyer  is  a  paid  advocate  whose  right  to  com- 
pensation is  enforced.  Physicians  also  are  protected  by  the 
courts,  and  aided  in  collecting  their  pay.  The  Burmese  code 
provides : 

"Oh  King!  if  any  one  shall  call  a  doctor  to  prescribe  for  a 
sick  person,  and  the  doctor  for  the  sake  of  the  pay  and  to 
relieve  the  sick  person,  shall  administer  medicine  to  him;  or 
if  the  doctor  is  called  to  wash  the  patient's  head  or  avert  the 
evil  influence  of  the  stars,  and  shall  go  to  where  he  is  called, 
and  holding  a  small  knife  or  stile  for  writing,  shall  only  lay 
hold  of  the  banisters  or  ascend  the  stairs,  and  if  the  sick  man 
before  his  arrival,  shall  obtain  relief,  and  on  recovery  shall 
ask  'did  you  use  any  charm? — did  you  give  me  one  of  your 
pills? — did  you  wash  my  head,  or  avert  the  evil  influences  of 
the  stars?' — and  insensible  to  friendship  shall  refrain  from 
paying;  if  the  doctor  have  an  affection  for  him,  he  may  get 
off  paying;  but  if  not  he  shall  pay  five  tickals  of  silver.  If 
a  good  doctor  reaches  the  banisters,  stairs  or  door;  and  a 
good  pleader,  though  he  do  not  state  the  case,  if  he  only  put 
up  the  sleeves  of  his  jacket,  or  set  down  preparatory  to  speak, 
they  shall  be  paid." 

"Any  good  pleader,  though  the  statement  of  his  case  may 
not  have  been  taken  down,  if  he  has  only  just  sat  down,  or 
put  up  the  sleeve  of  his  jacket,  shall  have  a  right  to  his  pay. 
There  shall  be  no  plea  that  the  case  was  not  noted. 

"If  the  client  shall  run  away  or  conceal  himself,  the  pleader 
shall  bear  the  whole  amount  of  the  decree.  If  he  produce  or 
hand  over  the  client,  he  is  free,  and  shall  have  a  right  to  ten 
per  cent  for  his  pay  and  security.  If  a  pleader  be  bad  he 
must  take  the  consequences ;  if  a  court  messenger  commit  any 


INDIA  195 

wrong,  he  must  take  the  consequences ;  the  cause  he  is  engaged 
in  shall  not  suffer. 

''If  a  pleader  shall  have  gained  a  cause  he  has  a  right  to  a 
percentage.  If  he  loses  it,  he  has  a  right  to  a  reasonable 
remuneration.  If  it  be  a  matter  of  life  or  death,  or  redemp- 
tion for  the  same,  and  the  xlient  shall  not  suffer  death,  or  pay 
the  forfeit;  the  pleader  has  a  right  to  a  fee  of  thirty  tickals 
of  silver,  the  price  of  his  client's  body." 

"If  a  man  shall  say  to  a  doctor  'give  me  medicine — if  I 
recover,  take  me  as  a  slave';  if  he  do  recover,  and  do  not 
wish  to  become  the  slave  of  the  doctor,  he  shall  have  a  right 
to  the  legal  price  of  his  body,  thirty  tickals  of  silver."  Vol. 
2,  sees.  19  and  20,  page  49. 

In  Burmah  trial  by  ordeal  is  allowable,  but  in  a  far  more 
mild  form  than  that  which  once  obtained  in  Europe. 

"Oh,  excellent  king !  the  decisions  by  ordeal  are  as  follows : 
1st.,  each  of  the  parties  are  made  to  take  one  tickals  weight  of 
water  in  their  mouth,  and  light  candles  of  equal  length;  this 
is  called  the  trial  by  fire:  2d.  the  trial  by  water,  both  parties 
are  made  to  go  under  water:  3d,  both  parties  are  made  to 
chew  one  tickal's  weight  of  rice;  4th,  both  parties  to  dip  into 
molten  lead.  Of  these  four,  in  the  trial  by  fire,  let  the  person 
whose  light  goes  out  first  be  the  loser  if  before  the  light  goes 
out,  one  shall  cough  out  the  water  from  his  mouth,  in  con- 
sequence of  some  portion  having  gotten  into  the  trachea,  let 
him  lose;  if  the  lights  go  out  together,  and  neither  cough  out 
the  water,  let  them  spit  out  the  water,  and  on  weighing  it,  the 
person  whose  water  weighs  least,  loses.  In  the  trial  by  water, 
let  the  person  who  first  comes  up  lose.  In  the  trial  by  chewing 
rice,  let  each  be  made  to  chew  one  tickal's  weight,  and  if  be- 
fore the  cup  with  which  time  is  measured  sinks,  the  rice  of 
one  be  all  finished,  or  swallowed)  and  one  not,  let  the  one 
whose  rice  is  not  finished  lose;  if  they  be  finished  together, 
let  them  wash  out  their  mouths  in  a  cup,  and  let  him  in  whose 
water  there  is  the  greatest  portion  of  rice  lose,  and  let  him 
whose  water  is  the  cleanest  win.  As  regards  dipping  into 
(molten)  lead  let  the  person  who  is  burned  lose,  and  he  who 
is  not  burned  win.  Thus  the  recluse  said."  Vol.  9,  sec.  16, 
page  254. 


i 


196  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Witchcraft  was  recognized  and  dreaded  and  is  defined,  de- 
tected and  punished  in  accordance  with  the  provisions  of  the 
next  section  which  gives  some  idea  of  the  superstitions  which 
prevail  in  that  country. 

''Oh,  excellent  king!  as  regards  the  seven  kinds  of  witches, 
or  wizards;  there  is  the  witch  who  is  so  by  reason  of  his 
condition;  the  two  who  are  so  by  reason  of  medicine;  the 
four  who  are  hereditarily  so  by  reason  of  the  Nat  of  their 
parents,  taking  up  his  abode  in  the  person  continually,  these 
are  the  seven.  Of  these  seven  the  witch  called  hmau-wen, 
or  kaway  myonk,  is  the  greatest ;  next  below  him  is  the  hneet- 
padat,  the  next  is  ieng-ta-lien  or  goung-pyan,  the  next  zauga- 
nee,  the  next  tha-tsong,  the  next  kyuy-tsong,  and  the  next 
let-touk-tsong. 

"Of  these  kinds  of  wizards,  the  athortsong,  kyay-tsong  and 
let-tsong  are  those  who  at  night  eat  flowers  and  parched  grain 
within  the  enclosure  around  their  own  houses,  fire  issuing 
from  their  mouths.  Of  these  the  kyay-tsong  and  the  let-tsong, 
become  witches  by  taking  certain  medicines;  the  atha-tsong 
are  so  constitutionally,  they  do  not  bewitch  people.  If  they 
are  thrown  into  water  seven  cubits  deep,  they  can  sink  so  as 
to  leave  one,  two  or  three  knots  of  the  rope  above  water. 
These  are  not  proper  objects  to  be  banished  from  the  village 
or  district  but  the  person  who  accuses  them  is  not  to  be  held 
in  fault,  he  had  a  right  to  accuse  them.  It  shall  not  be  said 
that  they  sank  in  the  water  or  that  they  floated.  The  state- 
ment of  both  parties,  accuser  and  accused,  is  true;  they  are 
and  they  are  not  witches ;  let  them  therefore  bear  the  expenses 
equally. 

"Besides  these ;  the  kaway  cannot  sink  in  the  water,  and  the 
kneet-padat,  though  with  great  exertion,  he  can  get  under  the 
water,  he  can  only  sink  two  knots  (or  cubits),  five  are  left 
above  water;  the  ieng-ta-lien  and  the  zau-ganee  are  the  same. 
These  four  are  wizards  by  reason  of  the  Nat,  who  has  been 
worshipped  by  the  ancestors  in  succession,  taking  up  his  abode 
in  their  bodies.  They  eat  the  food  put  out  for  them  in  the 
small  flat  bamboo  frames  used  for  winnowing  grain,  and  in 
little  baskets;  they  bewitch  people  so  as  to  cause  their  death. 


INDIA  197 

and  then  eat  them;  they  also  dig  up  the  human  bodies  from 
the  grave  and  eat  them.  Of  these  (the  last),  three  cannot 
bewitch  a  person  across  a  running  stream,  and  even  in  the 
same  village  or  district,  they  cannot  bewitch  a  person  seven 
houses  distant.  If  these  float,  they  must  be  banished  the 
district.  The  kaway  can  bewitch  a  person  even  if  a  stream 
intervene,  so  this  witch  must  be  banished  beyond  several 
streams,  to  free  the  village  from  his  influence.  In  these  seven 
matters,  these  are  truly  the  traditionary  rules  from  the  be- 
ginning of  the  world  for  trying  any  man  or  woman  who 
practices  witchcraft.  In  accordance  with  them,  let  the  guar- 
dians of  the  law,  the  king,  nobles,  thoogyees,  and  heads  of 
villages,  after  having  arranged  all  the  preliminary  steps  in 
strict  conformity  with  the  ceremonial  prescribed  for  the  trial 
of  the  seven  kinds  of  wizards  by  the  ancient  teachers,  select 
a  piece  of  still  water  where  there  is  no  current,  and  in  which 
there  are  no  stumps  of  trees,  rocks,  or  inequalities,  and  throw 
them  into  it.  All  matters  connected  with  witchcraft  are  only 
made  clear  by  the  ordeal  of  water.  As  regards  the  doctors 
tamee,  yooaytan,  and  other  things,  they  are  uncertain,  and  not 
to  be  depended  on,  whether  the  witch  has  bewitched  another, 
and  the  fact  is  discovered,  or  the  witch  or  wizard  of  them- 
selves confess  that  they  are  so.  The  four  witches  above  men- 
tioned, even  if  people  are  afraid  to  associate  with  them, 
should  be  admonished  by  the  three  gems  (god,  the  law,  and 
the  priests),  and  warned  to  desist  (from  these  evil  practises) 
and  they  should  be  called  on  to  declare  in  the  presence  of  the 
gems  that  they  will  observe  the  (five)  moral  duties  and  will 
renounce  their  bad  habits,  and  to  swear  by  the  three  gems 
that  they  will  in  future  practice  good  works.  This  is  the 
way  good  kings,  embryo  Boodahs,  decide,  and  if  the  king 
passes  sentence  in  like  manner,  the  rains  will  be  abundant,  the 
rivers  full,  and  the  country  flourishing  and  quiet.  Thus  the 
son  of  the  king  of  Brahmahs,  the  recluse  called  Menoo  said." 
The  race  which  developed  so  complete  a  system  of  laws  and 
of  the  administration  and  application  of  them  to  all  forms 
of  controversies  has  utterly  failed  to  construct  a  form  of 
government  adapted  to  wide  dominion  or  designed  to  check 


198  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  abuses  of  rulers.  All  the  great  empires  of  India  of  which 
we  have  any  account  have  been  established  by  foreign  con- 
querors. 

The  authority  of  the  king  was  in  most  instances  established 
by  military  force.  He  might  be  a  member  of  either  the  Brah- 
man or  Cshttriya  caste  but  very  rarely  of  an  inferior  one. 
The  superiority  of  the  Brahmans  has  been  perpetuated  by 
education  rather  than  by  military  force  or  political  combina- 
tion. The  Brahmans  learned  and  conducted  the  religious 
rites  and  ceremonies  and  claimed  to  stand  next  to  the  gods. 
They  were  the  teachers  and  expositors  of  the  laws  and  to 
them  were  referred  all  questions  of  right.  Their  enduring  as- 
cendency is  clearly  traceable  to  education  and  the  recognized 
law  of  inheritance,  not  merely  of  property,  but  also  of  caste, 
of  personal  status,  as  a  superior  order. 

The  Brahmans  from  very  early  times  have  been  readers 
and  writers.  The  mass  of  literature  produced  in  the  past  is 
very  great.  Just  when  and  how  the  various  provisions  found 
in  the  codes  first  came  to  be  adopted  there  is  no  available 
means  for  determining. 

The  religious  conceptions  of  the  people  have  tended  to  in- 
dividuality and  segregation  rather  than  extended  combina- 
tions. The  idea  has  prevailed  that  a  man  may  purify  and 
elevate  his  own  soul  by  separation  from  his  fellow  men, 
through  meditation  and  religious  studies  and  observances. 
Testing  moral  worth  by  the  good  done  to  others  and  the 
value  of  social  combinations  by  the  advantages  of  mutual 
help,  seems  to  have  been  generally  discountenanced.  Perhaps 
it  may  be  difficult  to  establish  a  charge  of  general  lack  of 
fraternal  feeling  among  the  people,  but  it  seems  clear  that 
there  has  not  been  great  capacity  for  organizing  and  combin- 
ing to  accomplish  common  ends.  The  common  mistake  of 
rating  the  relation  of  the  individual  to  an  imaginary  personal 
god  as  of  more  importance  than  his  relation  to  his  fellow 
man  and  of  assuming  that  there  can  be  merit  in  conduct 
which  does  not  tend  to  the  well  being  either  of  the  individual 
himself  or  some  other  person,  has  prevailed  there,  yet  pos- 
sibly not  more  generally  than  in  other  parts  of  the  world. 


INDIA  199 

To  abstain  from  all  crimes  and  vice  is  the  observance  of  a 
part  of  the  moral  law,  but  the  more  important  and  more  diffi- 
cult task  is  to  promote  the  welfare  of  the  individual,  his  family 
and  all  others  whom  he  can  aid.  The  first  may  be  termed 
passive  morality,  the  second  active.  Passive  morality  affords 
peace  and  repose,  active  morality  leads  to  a  full  and  glorious 
life  of  enjoyment  and  satisfaction.  In  India  as  well  as  in 
Europe  the  most  extended  combinations  of  the  strength  and 
vigor  of  men  have  been  formed  for  vicious  purposes.  The 
activities  of  war  have  generally  appeared  greater  than  those 
of  peace,  though  exerted  for  immoral  ends.  Thousands  of 
years  of  combinations  of  men  to  destroy  each  other  have  not 
yet  taught  them  to  make  equally  great  combinations  for 
mutual  aid. 

The  relative  value  of  the  civilization  of  any  country  can- 
not be  safely  gauged  by  the  conditions  existing  at  some  se- 
lected point  of  time.  If  estimated  in  the  eleventh  century, 
Europe  must  have  been  condemned  as  the  country  of  robbers 
and  murderers,  or  if  during  the  thirty  years  war  as  one  in 
which  the  people  generally  had  gone  mad  over  religious  medi- 
tations and  discussions. 

The  people  of  the  United  States  of  America  from  1861  to 
1865  must  have  been  condemned  as  a  great  family  of  fratri- 
cides, who  deliberately  sought  each  other's  destruction  without 
just  cause  on  either  side. 

Measured  by  the  conditions  prevailing  throughout  the  last 
one,  two  or  three  thousand  years,  it  may  well  be  claimed  that 
the  civilization  of  India  has  been  superior  to  that  of  Europe. 
There  have  been  more  people,  and  they  have  been  less  at  war 
with  each  other  and  better  supplied  with  enjoyable  things  than 
the  Europeans  as  a  whole.  It  is  only  within  the  past  hundred 
years  that  population  has  multiplied  rapidly  in  Europe  and 
the  general  scale  of  comfort  among  the  masses  materially  ad- 
vanced. All  this  gain  comes  from  diminished  efforts  to  de- 
stroy each  other  and  more  numerous  and  extensive  combina- 
tions for  mutual  profit  and  advantage.  It  is  strange  indeed 
that  men  are  so  slow  to  perceive  how  quickly  and  bountifully 
obedience  to  the  command  to  love  and  help  one  another  is 
lewarded. 


200  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

If  all  men  knew  that  they  must  remain  on  earth  through 
successive  incarnations  and  must  find  heaven  or  paradise  here 
and  not  elsewhere,  possibly  there  would  be  more  disposition 
manifested  to  make  the  world  better  during  this  life  in  order 
to  prepare  it  for  the  next.    Whether  the  souls  of  this  genera- 
tion shall  return  and  inhabit  the  earth  in  the  next  or  not  is  a 
matter  of  belief  rather  than  of  knowledge,  but  certain  it  is 
that  our  children  and  their  descendants  must  abide  in  it  till 
the  race  becomes  extinct.     No  legacy  can  be  passed  down  to 
posterity  of  such  inestimable  value  as  a  well  learned  lesson 
of  peace,  concord  and  mutual  aid.     The  boundaries  of  the 
moral  law  will  be  found  coterminous  with  those  of  the  true 
relations  of  man  to  man  and  to  the  living  beings  on  earth. 
British  rule  in  India  has  not  yet  revolutionized  the  educational 
system.     The  policy  of  giving  free  and  universal  instruction 
to  the  young  does  not  prevail  in  the  British  Isles  and  very 
naturally  would  not  be  carried  into  India.     The  British  have 
however  made  progress  in  introducing  those  great  exponents 
of  modern  civilization,  the  railroad,  telegraph,  printing  press 
and  post  office.     Through  these  practical  lessons  of  coopera- 
tion are  taught  and  local  animosities  are  diminished  by  com- 
mercial intercourse  and  social  contact.     The  eradication  of 
caste  prejudices  is  a  task  of  great  difficulty  and  can  only  be 
effected  by  radical  changes  in  the  educational  system  and  re- 
ligious teachings.    The  British  maintain  their  rulership  largely 
by  taking  advantage  of  local  animosities  and  caste  distinctions 
through  which  the  natives  are  deterred  from  combining,  and 
the  government  employs  one  to  curb  another.     Increased  in- 
tercourse with  each  other  and  with  the  outside  world  must  in 
time  produce  their  logical  effects  on  the  people,  but  the  inertia 
of  such  a  mass  is  very  great  and  can  only  be  overcome  in  a 
long  period  of  time  or  by  an  exceptional  wave  of  enlighten- 
ment, such  as  comes  to  any  people  only  once  in  many  cen- 
turies.    India  has  had  its  experiences  of  this  kind  in  the  past 
and  may  again  in  the  future. 

Note. — The  extracts  from  the  code  of  Manu  are  taken  from  the  trans- 
lation of  Sir  William  Jones  edited  by  G.  C.  Houghton  and  published  by 
Cox  &  Baylis,  London  in  1825.  Those  from  the  Burmese  Code  are  from 
a  translation  published  by  the  Baptist  Mission  at  Philadelphia  in  1848. 


CHAPTER  X 


China 


In  the  study  of  any  subject  allowance  must  be  made  for 
perspective  in  order  to  gain  a  just  comprehension  of  it.  China 
is  not  merely  geographically  at  the  antipode  to  western  Eu- 
rope and  America,  but  it  is  equally  remote  and  dissimilar  in 
its  civilization.  First  consider  what  the  Chinese  Empire  is 
geographically.  In  area  it  covers  about  4,200,000  square 
miles,  about  421,000  square  miles  more  than  all  Europe. 
China  proper  has  an  area  of  about  1,312,326  or  about  389,000 
square  miles  less  than  Europe,  exclusive  of  Russia.  In  climate 
it  includes  all  varieties  from  the  tropical  district  of  Kwang 
Tung,  to  the  regions  of  perpetual  snow  in  the  mountains  of 
Thibet  and  Mongolia.  In  soil  it  has  all  gradations  from  the 
inexhaustible  fertility  of  the  rich  loess  lands  of  Chili,  Shan-Si, 
Shen-Si,  Kan-suh  and  Ho-nan  to  the  barren  rocks  and  sandy 
deserts  of  Gobi,  and  the  equally  barren  peaks  of  the  Thian- 
Shan  and  Kuen-Lun.  Its  surface  shows  every  variety  of 
formation  from  level  plain  to  craggy  mountain,  and  the  most 
varied  flora  from  the  dense  growth  and  endless  variety  of  the 
tropics  to  the  poverty  and  barrenness  of  the  regions  of  per- 
petual frost.  Its  majestic  rivers  are  but  slightly  inferior  to 
the  Mississippi,  the  Amazon  and  the  Nile.  Its  fauna  is  rich 
and  varied  in  species  and  numbers.  But  in  nothing  else  is  it 
so  marked  as  in  the  numbers  of  its  people  and  its  unique 
civilization.  The  latest  estimates  accredit  the  empire  with 
400,000,000  or  about  45,000,000  more  than  all  Europe  con- 
tains. While  the  empire  includes  many  tribes  not  of  Chinese 
stock,  and  differing  more  or  less  in  type  from  the  Chinese, 
the  great  bulk  of  the  population  is  distinctly  of  one  race, 
speaking  one  language,  with  no  more  difference  of  dialect 
than  is  found  in  England,  France  or  Germany.  This  vast 
empire  is  now,  and  for  many  centuries  has  been,  ruled  by  one 


201 


202  EVO^LUTION  OF  GOVERNMENTS  AND  LAWS 

government,  while  Europe  with  its  boasted  superiority  is  di- 
vided at  this  day  into  nineteen  separate  and  independent  na- 
tions. Not  only  do  the  people  of  one  of  these  nations  speak 
a  language  different  from  that  of  nearly  every  other,  but 
several  of  the  nations  include  people  speaking  many  different 
tongues.  The  United  Kingdom  of  Great  Britain  and  Ireland, 
with  a  population  about  equal  to  that  of  the  province  of 
Kiang-Su,  includes  English,  Welsh,  Scotch  and  Irish.  Russia 
includes  Laps,  Finns,  Russians,  Poles,  Slavs,  and  Cossacks, 
differing  widely  from  each  other  in  language,  customs  and 
race  characteristics. 

China  proper  is  divided  into  eighteen  provinces,  but  all 
are  under  one  government  and  one  system  of  laws.  The 
political  map  of  Europe,  ever  since  history  began,  has  been 
subject  to  frequent  and  great  changes.  The  nineteenth  cen- 
tury has  seen  nations  rise  and  fall  and  boundaries  of  nations 
expand  and  contract  from  one  decade  to  another,  to  such  an 
extent  as  to  render  a  map  twenty  years  old  utterly  unreliable. 

While  China  has  had  its  internal  wars  and  has  at  times  been 
subjected  to  a  divided  rulership,  it  still  has  maintained  its  in- 
tegrity as  a  nation  through  thousands  of  years.  It  has  been 
conquered  by  Tartars  without  revolutionizing  its  customs 
and  laws,  and  with  but  slight  effect  on  the  great  Chinese  mass. 
Through  all  changes  and  vicissitudes  the  civilization  to  be 
found  in  China  has  been  distinctly  Chinese.  Long  before 
letters  were  introduced  into  Greece,  the  Chinese  had  their 
unique  system  of  characters.  The  name  of  the  inventor  and 
date  of  the  invention  are  given  in  one  tradition  as  Fuh-hi 
3200  B.C.  and  in  another  as  Tsang-ki  2700  B.C.,  either  date 
however  is  sufficiently  remote  to  precede  the  time  when  Cad- 
mus carried  the  alphabet  into  Greece  by  over  1500  years. 
That  much  progress  in  agriculture  and  the  arts  had  been  made 
long  before  the  Greek  tribes  migrated  from  Asia  Minor  into 
Greece,  is  amply  proved  by  the  historical  records  of  the  Chi- 
nese, which  extend  back  in  credible  and  definite  form  at  least 
as  far  as  the  reign  of  Yaou  2356  B.C.  The  first  weaving  of 
silk  is  ascribed  to  Si-ling-shi  wife  of  the  Emperor  Hwang-ti 
about  2600  B.C. 


CHINA  203 

For  early  records  of  China,  we  look  only  to  China.  No 
neighboring  nation  can  furnish  us  contemporary  side  lights. 
Of  all  the  people  of  eastern  Asia  the  Chinese  first  invented  a 
written  language  and  first  became  historians.  Whether  in 
authentic  writings  they  antedate  the  Egyptians  is  a  question 
on  which  archeologists  may  differ,  but  certain  it  is  that  their 
early  histories  are  far  more  numerous  and  copious  than  those 
of  any  other  people  on  earth.  It  is  surmised  by  some,  that 
the  progenitors  of  the  race  migrated  into  China  from  the 
vicinity  of  the  Caspian  Sea,  but  the  writer  does  not  know  on 
what  evidence,  for  no  ancient  Chinese  record  is  referred  to 
as  proving  it,  and  there  are  no  older  or  other  records  on 
the  subject. 

The  Chinese  like  the  Egyptians,  wer^  first  found  in  the 
country  they  now  inhabit.  Their  civilization  has  grown  and 
continued  to  abide  where  it  now  exists.  It  has  until  very 
recent  times  received  no  marked  impulse  from  without  except 
the  Buddhist  religious  teachings.  No  conquering  horde  has 
ever  swept  over  the  provinces  of  China  and  supplanted  the 
ancient  race  with  its  own  people.  The  Tartar  conquest  begun 
by  Jenghiz  Kahn  and  completed  under  Kublai,  while  bloody 
and  destructive  in  the  paths  of  the  invading  armies,  failed  to 
destroy  or  supplant  the  ancient  stock.  The  subsequent  Man- 
chu  conquest  was  a  change  of  rulers,  but  slightly  affecting 
the  great  multitude.  Throughout  all  ages  China  has  been  secure 
against  outside  foes,  except  such  as  entered  from  the  North. 
The  barren  inaccessible  heights  of  the  Himalayas  on  the  south 
have  ever  interposed  an  im.passible  barrier  against  invasion 
from  that  direction.  The  barren  steppes  of  Thibet  and  Mon- 
golia could  only  be  reached  from  the  west  after  crossing  the 
mountain  ranges  of  central  Asia.  Only  from  the  north  has  it 
been  found  practicable  to  lead  in  an  invading  army,  and  that 
cold  and  inhospitable  country  has  not  frequently  poured  out 
hosts  of  such  magnitude  as  to  overrun  the  densely  peopled 
provinces  of  China,  and  never  sufficient  to  drive  out  the  people. 

Like  all  other  people,  in  their  accounts  of  the  origin  and 
early  history  of  their  race,  the  Chinese  narrate  what  is  evi- 
dently fabulous  and  imaginary.     Records  cannot  antedate  the 


204  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

art  of  making  them,  and  traditions  receive  an  accretion  of 
the  marvelous  as  they  are  passed  down  from  generation  to 
generation,  till  the  real  basis  of  truth  is  covered  up  and  indis- 
cernible. The  period  of  2,267,000  +  years,  given  by  Chinese 
writers  as  having  elapsed  between  the  creation  of  man  and 
the  time  of  Confucius,  is  entitled  to  no  more  and  no  less 
credit  than  any  other  attempt  at  fixing  the  date  of  man's 
advent  on  earth.  Nor  could  anything  be  more  whimsical  than 
an  attempt  to  blend  and  harmonize  authentic  Chinese  history 
with  the  Mosaic  account  of  creation. 

The  earliest  accounts  and  traditions  locate  the  Chinese  along 
the  Yellow  River  in  and  about  the  province  of  Shan-si,  and 
while  Chinese  writers  mention  numerous  long  dynasties  an- 
terior to  his  time,  Fuh-hi  appears  to  be  about  the  first  ruler 
whose  existence  at  some  date  appears  fairly  certain.  The 
date  of  his  accession  to  the  throne  is  variously  estimated  from 
2852  to  3322  B.C.  He  and  his  seven  successors  are  said  to 
have  reigned  747  years,  giving  an  average  of  gsH  years  to 
each.  While  such  periods  are  shorter  than  the  lives  of  Bibli- 
cal patriarchs,  they  are  equally  improbable  and  afford  no  data 
for  computing  the  time  of  events.  To  Tuh-hi  is  attributed 
the  Yih-King,  or  Book  of  Changes,  which  stands  at  the  head 
as  the  most  ancient  of  the  Five  Classics.  The  work  appears 
to  us  rather  whimsical,  being  made  up  of  essays  on  important 
themes,  illustrated  by  a  combination  of  whole  and  broken  lines 
treated  as  different  principles,  placed  one  above  the  other  in 
various  orders,  and  which  are  regarded  as  symbolical  of  the 
subjects  discussed.  Perhaps,  however,  as  symbols  these  linear 
combinations  may  have  meant  more  to  the  Chinese  than  they 
do  to  us. 

The  early  reigns  are  sometimes  spoken  of  as  though  the 
sovereign  occupied  the  same  relation  to  the  people  as  in  later 
years,  yet  it  is  said  that  the  successors  of  Hwang-ti  were 
elected  by  the  people.  The  reign  of  Yao  2356  B.C.  is  taken 
as  the  starting  point  of  authentic  history.  In  his  reign  there 
was  a  great  flood  causing  a  permanent  overflow  of  much  land. 
This  was  remedied  by  works  carried  on  under  Yu,  who  after- 
ward succeeded  to  the  throne.     Little  appears  to  be  recorded 


CHINA  205 

concerning  the  condition  of  the  people  or  the  constitution  of 
the  government.  The  ruler  is  always  treated  as  the  subject 
of  the  theme  and  matters  of  real  interest  are  mentioned  only 
incidentally.  It  is  evident,  however,  that  in  the  earliest  times 
of  which  any  accounts  are  preserved,  the  Chinese  tilled  the 
soil,  had  domestic  animals  and  wove.  Yu  established  markets 
and  fairs  to  accommodate  trade.  In  his  time  the  Empire  is  said 
to  have  extended  from  twenty-three  to  forty  north  latitude  and 
six  degrees  west  and  ten  degrees  east  from  Peking;  this  in- 
cludes the  greater  part  of  China  proper.  The  reigns  of  Shun 
and  Yu  have  been  immortalized  by  Confucius  and  possibly  he 
has  depicted  their  characters  in  accordance  with  what  a  ruler 
should  be,  rather  than  with  what  these  rulers  really  were. 

From  the  time  of  Yu  the  throne  became  hereditary,  but  the 
system  prevailing  appears  to  have  been  similar  to  the  feudal 
system  of  Europe  in  later  times.  If  the  character  of  the  rule 
of  Yu  is  correctly  given  in  the  answer  of  Kaogao,  as  given  in 
the  Shit  King  he  acted  on  most  enlightened  maxims.  "Your 
virtue  O !  Emperor  is  faultless.  You  condescend  to  your  min- 
isters with  a  liberal  ease,  you  rule  the  multitude  with  a  gen- 
erous forebearance.  Your  punishments  do  not  extend  to  the 
criminal's  heirs,  but  your  rewards  reach  to  after  generations. 
You  pardon  inadvertent  faults  however  great,  and  punish  de- 
liberate crime  however  small.  In  cases  of  doubtful  crimes 
you  deal  with  them  lightly,  of  doubtful  merit  you  prefer  the 
highest  estimate.  Rather  than  put  to  death  the  guiltless,  you 
will  run  the  risk  of  irregularity  and  laxity.  This  life  loving 
virtue  has  penetrated  the  minds  of  the  people,  and  this  is  why 
they  do  not  render  themselves  liable  to  be  punished  by  your 
officers." 

The  historic  accounts  of  the  early  rulers  of  China  are  essen- 
tially the  same  as  those  of  monarchs  everywhere  who  are 
subject  to  no  efficient  restraints.  There  were  wise  and  able 
founders  of  dynasties,  who  ruled  for  the  good  of  the  people, 
followed  by  degenerate  offspring  who  were  dissolute,  cruel 
and  oppressive.  No  instance  is  recorded  in  history  of  a  long 
succession  of  hereditary  monarchs  w^ho  have  maintained  a  high 
standard  either  of  capacity  or  virtue.    It  is  hardly  worth  while 


206  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

at  this  time  to  moralize  on  the  causes  of  the  degeneracy  of 
ruling  houses.  The  fact  that  it  invariably  takes  place  is  the 
matter  of  prime  importance. 

The  Shang  dynasty  founded  1766  B.C.  ended  1122  B.C. 
and  was  followed  by  the  Chau.  The  reign  of  its  founder 
Wu  Wang  is  looked  to  as  a  kind  of  golden  age  in  Chinese 
history,  yet  he  committed  the  blunder  of  divinding  the  empire 
into  seventy-two  petty  feudal  states,  leaving  himself  only  a 
small  portion  of  territory  and  power.  The  number  of  these 
states  was  at  one  time  as  high  as  125  and  in  the  time  of  Con- 
fucius fifty-two.  The  effect  of  this  division  was  unceasing 
internecine  wars,  which  would  have  rendered  the  whole  an 
easy  prey  to  a  powerful  outside  foe.  In  936  B.C.  the  Tartars 
made  their  first  incursions  of  which  we  have  any  account, 
which  were  continued  from  time  to  time  thereafter.  At  the 
birth  of  Confucius  557  B.C.  the  empire  was  in  this  unhappy 
condition.  Though  the  Chau  dynasty  covers  a  period  of  weak- 
ness in  the  central  power  and,  as  has  always  happened  under  a 
feudal  system,  of  strife  and  bloodshed  among  feudatories,  if 
yet  endured  longest  of  any  in  the  history  of  the  empire,  cover- 
ing a  period  of  873  years  down  to  249  B.C.  It  was  during 
this  dynasty  that  those  men  appeared  on  earth  who  have  ex- 
ercised such  marked  influence  on  Chinese  thought,  habits,  cul- 
ture and  society.  Gautama,  Confucius,  Mencius  and  Lao  Tze, 
have  each  left  distinct  and  enduring  imprints  of  their  teach- 
ings, Gautama,  deified  as  the  incarnation  of  Buddha  by  his 
devotees,  taught  men  to  do  good  deeds  and  live  pure  lives  in 
order  that  they  might  be  happy  in  a  future  state  of  existence. 
Though  a  native  of  northern  India,  his  disciples  spread  his 
doctrines  into  China  in  an  early  day,  and  his  followers  soon 
became  very  numerous  and  have  so  continued  to  the  present 
time. 

Confucius  was  a  teacher  of  earthly  wisdom  rather  than  the 
founder  of  a  religious  sect.  He  claimed  no  higher  sanction 
for  his  doctrines  than  reason  and  the  tests  of  experience.  He 
sought  to  establish  justice  and  promote  the  happiness  of  men 
on  earth.  One  of  the  means  to  these  ends  was  a  strong  gov- 
ernment honestly  and  faithfully  administered.     Another  was 


CHINA  207 

education  of  the  young  in  correct  principles.  In  character 
he  was  much  Hke  Socrates,  but  more  practical  in  his  methods. 
He  was  not  averse  to  assuming  responsibility  and  putting  his 
maxims  into  practical  operation.  Far  more  than  any  other 
man,  he  has  moulded  Chinese  customs  and  character  down 
to  the  present  time.  The  antiquity  of  Chinese  literature  is 
well  shown  by  the  works  of  Confucius.  His  Shu  King,  or 
Book  of  History,  consists  of  ancient  public  documents  from 
the  time  of  Yao  2356  B.C.  to  King  Hiang  627  B.C.  These 
include  imperial  ordinances,  plans  drawn  up  by  ministers  for 
the  guidance  of  the  emperor,  imperial  proclamations,  vows 
of  the  monarch  before  Shang-ti  when  going  out  to  battle, 
and  mandates,  announcements,  speeches,  etc.  by  ministers  of 
state.  These  were  edited  by  Confucius  with  his  comments. 
Confucius  gathered  the  learning  of  the  past  and  inculcated 
the  study  of  the  wisdom  of  the  ancients.  He  was  far  more 
a  compiler  than  an  author.  Of  the  five  classics,  though  all 
bear  marks  of  his  labors,  only  the  Chun  Tsiu  or  Spring  and 
Autumn  Record  was  originally  written  by  him.  The  Shi 
King  or  Book  of  Odes  is  a  collection  of  odes  and  songs  origi- 
nally gathered  from  all  the  provinces  by  the  emperor  Wang 
Wau,  numbering  three  thousand,  most  of  which  were  lost 
however  before  the  time  of  Confucius.  These  odes  were 
used  in  connection  with  public  and  religious  services.  Only 
311  of  them  are  now  extant. 

Not  the  least  important  in  its  practical  effect  on  after  gen- 
erations is  the  Li-ki  or  Book  of  Rites.  •  No  other  people  are 
so  fond  of  ceremony  as  the  Chinese.  How  far  back  in  an- 
tiquity this  fondness  extended  we  are  not  informed,  but  a 
ritual  is  attributed  to  Duke  Chau,  11 30  B.C.,  on  which  much 
that  is  observed  at  the  present  day  appears  to  be  founded. 
Though  filled  with  ceremonial,  the  book  of  Rites  also  teaches 
the  principles  governing  the  conduct  of  members  of  the  family 
toward  each  other,  of  citizens  toward  officials,  of  officials  to- 
ward citizens  and  each  other.  No  other  of  the  classical  books 
appears  to  have  exercised  so  profound  an  influence  on  suc- 
ceeding generations.  Not  only  has  it  established  a  vast  multi- 
plicity of  forms  and  ceremonies  to  be  observed  each  day,  but 


2o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

it  has  profoundly  impressed  on  all  generations  its  fundamen- 
tal principlesj  respect,  amounting  very  nearly  to  religious  ven- 
eration, for  parents  and  rulers  and  politeness  to  everyone. 
With  these  classical  books  the  name  of  Confucius  is  insepar- 
ably connected.  Neither  of  them  is  a  law  book  in  the  sense 
in  which  the  term  is  used  in  the  west,  nor  yet  are  they  re- 
ligious compilations  in  a  western  sense,  but  many  of  the  rules 
they  contain  are  more  generally  obeyed  than  any  act  of  Con- 
gress or  Parliament,  and  many  of  the  moral  precepts  they 
teach  are  oftener  repeated,  and  as  generally  accepted,  as  any 
of  the  truths  contained  in  the  Bible  are  in  Europe  or  America. 

The  secret  of  the  remarkable  influence  of  these  "Five 
Classics,"  as  they  are  termed,  seems  to  lie  in  their  consonance 
with  Chinese  tastes  and  character.  No  other  people  have  half 
the  respect  for  what  is  ancient  that  they  do.  Though  put  in 
form  by  Confucius,  the  material  was  already  in  existence, 
and  he  professed  merely  to  compile  the  wisdom  of  the  past. 
The  age  in  which  Confucius  lived  was  one  of  weakness  in 
the  central  government  and  of  war  and  contention  among 
the  inferior  rulers.  Robbers  and  maurauders  appear  to  have 
been  numerous.  He  sought  to  permanently  remedy  the  evils 
resulting  from  these  conditions. 

The  Chau  dynasty  ended  with  the  accession  to  the  throne 
of  Chwang-si-ong  Wang.  After  but  three  days  reign  he 
died  leaving  the  empire  to  his  thirteen-year-old  son  Chi 
Hwangti.  By  the  extermination  of  the  imperial  house  he 
established  his  power,  and  by  conquest  of  the  petty  states 
extended  the  boundaries  of  the  empire  to  include  most  of 
China.  He  divided  the  country  into  thirty-six  provinces  over 
which  he  placed  governors,  whose  conduct  he  supervised. 
From  his  time  the  essential  features  of  the  present  govern- 
mental system  seem  to  date.  He  finally  overthrew  the  feudal 
system  and  firmly  established  the  central  power.  Nor  was 
he  possessed  of  the  spirit  of  reverence  for  the  wisdom  of  the 
past  which  has  since  been  so  general.  The  title  he  assumed 
of  First  Emperor  and  his  destruction  of  all  records  written 
anterior  to  his  reign,  evidence  his  vanity  and  desire  to  be 
regarded  in  history  as  the  founder  of  the  empire.     He  prob- 


CHINA  209 

ably  was  the  first  to  rule  all  China.  Although  his  order  to 
burn  all  ancient  writings  was  carried  out  and  nearly  500  of 
the  literati  were  burned  alive  to  complete  the  infamy,  not  all 
the  copies  were  found  by  the  vandals  and  so  much  was  pre- 
served in  the  memories  of  scholars,  that  the  classics  were  again 
reproduced  by  the  generation  then  living.  The  peculiar  sys- 
tem of  education  then  and  now  prevailing  in  China  resulted 
in  literal  memorizing  by  the  scholars  of  the  texts  of  these 
works.  Copies  of  some  of  the  classics  are  also  said  to  have 
been  found  more  than  a  century  later,  concealed  in  the  walls 
of  Confucius'  house.  The  destruction  and  reproduction  of 
these  works  indicate  th^  prevalence  of  education  at  the  time. 

Though  detached  portions  of  the  great  wall  along  the  north- 
ern border  of  the  empire  had  been  built  by  the  states  for  their 
security  against  Tartar  incursions,  it  was  in  the  reign  of 
Hwangti  that  the  work  of  joining  these  together  into  one 
complete  and  continuous  defense  was  undertaken,  and  suc- 
cessfully carried  out  soon  after  his  death.  No  other  evidence 
remains  which  so  surely  proves  the  vast  extent  of  the  empire 
and  the  numbers  and  industry  of  the  people  as  this  great 
work.  The  construction  of  a  wall  1500  miles  long,  twenty- 
five  feet  thick  at  base  and  fifteen  at  top  from  fifteen  to  thirty 
in  height,  with  detached  towers  at  intervals,  could  not  have 
been  accomplished  without  the  cooperation  of  a  vast  multi- 
tude of  workers,  within  the  period  of  ten  years  in  which  it 
was  built.  The  pyramids  of  Egypt  are  diminutive  in  com- 
parison with  this  great  structure. 

Chi  Hwangti  died  210  B.C.  His  weak  and  debauched  son 
was  unable  to  curb  the  turbulent  leaders  and  was  soon  de- 
posed. After  five  years  of  civil  war,  Liu  Pang  overthrew  his 
rival  and  was  proclaimed  emperor.  This  was  followed  by 
the  Han  dynasty  which  continued  till  A.D.  221.  The  founder 
Liu  Pang  is  accredited  with  having  instituted  the  system  of 
competitive  examinations  for  office,  though  by  some  authori- 
ties the  perfection  of  the  system  in  its  present  form  is  fixed 
at  A.D.  600.  His  successor  appointed  a  commission  to  restore 
as  far  as  possible  the  texts  of  the  literary  works  destroyed  by 
order  of  Hwangti.     A  period  of  comparative  peace  and  pros- 


210  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

perity  followed,  but  about  the  beginning  of  the  Christian  era 
a  rebellion  broke  out  followed  by  disorders  which  resulted  in 
the  establishment  of  the  eastern  Han  dynasty.  A.D.  65 
Buddhism  was  introduced  into  China  and  about  the  same  year 
an  embassy  was  sent  into  Turkestan,  soon  followed  by  an 
acknowledgment  of  sovereignty  of  the  emperor  over  Shen- 
Shen,  Khotan,  Kuche  and  Kashgar.  Their  allegiance,  how- 
ever, soon  fell  off. 

A.D.  220-221-222  the  empire  was  partitioned  between  three 
rival  warriors  into  three  kingdoms,  the  southern  of  which  in- 
cluded modern  Tonquin.  This  partition  was  followed  by  a 
long  period  of  war  and  turmoil,  during  which  power  was 
wielded  only  by  such  as  demonstrated  their  ability  to  maintain 
it.  In  284  an  embassy  from  the  Roman  Emperor  Theodosius 
was  sent  into  China.  This  appears  to  have  been  the  first  case 
of  official  intercourse  between  China  and  Europe.  In  419 
the  eastern  Tsin  dynasty  came  to  an  end  and  the  empire  stood 
divided  between  the  northern  and  southern.  Disorders  con- 
tinued until  590  when  Yang  Keen  established  the  Suy  dynasty. 
He  restored  comparative  peace  and  prosperity  to  the  country, 
though  he  fought  and  defeated  the  Tartars  and  Coreans.  He 
caused  a  survey  to  be  made  of  his  dominions  and  divided  them 
into  chan,  kiien,  and  hien  with  corresponding  officers,  and  this 
arrangement  is  still  retained.  At  the  close  of  his  reign,  which 
lasted  sixteen  years,  one  of  his  sons  forced  the  heir  to  strangle 
himself  and  usurped  the  throne.  He  waged  successful  war 
against  the  Tartars  and  increased  the  imperial  library  to 
54,000  volumes.  The  burdens  he  imposed  on  the  people,  in 
carrying  on  his  wars  and  schemes  of  internal  improvements, 
caused  a  rebellion  which  terminated  in  his  assassination. 

In  617  the  heir  to  the  throne  having  been  poisoned,  Li  Yuen, 
a  great  general,  proclaimed  himself  emperor  under  the  name 
of  Tai-tsung  founder  of  the  Tang  dynasty.  During  his  reign 
China  was  without  doubt  the  most  civilized  and  peaceful  coun- 
try on  earth.  With  the  crumbling  of  the  Roman  Empire, 
Europe  had  settled  into  a  period  of  ignorance  and  brutality 
from  which  it  did  not  emerge  for  many  centuries.  Chang 
Kwan  the  son  and  successor  of  Li  Yuen  is  spoken  of  as  the 


CHINA  211 

most  accomplished  prince  in  Chinese  history.  He  estabHshed 
schools  and  perfected  the  system  of  literary  examinations. 
He  ordered  a  complete  edition  to  be  published  of  the  Classics, 
and  paid  special  honors  to  the  memor}^  of  Confucius.  He 
promulgated  a  code  for  the  direction  of  the  judges.  He  had 
a  just  appreciation  of  the  responsibilities  and  dangers  of  a 
sovereign  and  an  anecdote  is  related  that,  when  sailing  on  the 
river  Wei,  he  said  to  his  sons.  "See  my  children  the  v^aves 
which  float  our  fragile  bark  are  able  to  submerge  it  in  an 
instant.  Know  assuredly  that  the  people  are  like  the  waves, 
and  the  Emperor  like  the  fragile  bark." 

In  his  reign  the  boundaries  of  the  empire  were  greatly  ex- 
tended toward  the  west,  including  Kuche,  Khoten,  Khorasan, 
Kashgar  and  the  Turkish  tribes  as  far  as  the  Caspian  Sea, 
over  each  of  which  was  placed  a  military  governor.  Ambas- 
sadors were  sent  to  the  imperial  court  from  Persia  and  Rome. 
In  635  a  Roman  priest  was  received  and  the  emperor  built 
him  a  church.  On  the  death  of  Chang  Kwan,  posthumously 
styled  Tai  Tsung  and  the  accession  of  Kaou-tsung,  his  wife. 
Woo  How,  became  the  real  master  of  the  emperor  and  at  the 
death  of  her  husband  she  set  aside  the  heir  and  seized  the 
throne.  She  ruled  with  vigor  and  her  armies  were  victorious. 
The  usual  round  of  vigor  on  the  throne,  followed  by  vice, 
external  wars  and  internal  rebellions,  followed  at  last  by  a 
division  of  the  empire  into  many  petty  warring  states,  filled 
out  the  balance  of  the  Tang  and  five  other  brief  dynasties  suc- 
ceeding it.  In  960  General  Chaou  Kwang-yin  was  proclaimed 
emperor  by  the  army,  which  at  that  time  seems  to  have  held 
all  power,  as  did  the  Praetorian  guard  at  Rome  in  earlier  times. 
In  the  tenth  and  eleventh  centuries  there  were  wars  with  the 
Tartars  and  Khitans,  resulting  at  times  in  the  payment  of 
tribute  by  China  to  the  Khitans. 

Abbe  Hue  relates  that  in  the  eleventh  century  under  the 
Sung  dynasty  there  were  socialists  in  China  and  that  there 
was  much  radical  political  discussion.  At  the  head  of  the  re- 
formers was  W^angngan-Chi,  a  man  of  remarkable  talents, 
great  learning  and  energy.  Instead  of  showing  profound  de- 
votion to  the  wisdom  of  the  ancients,  he  attacked  the  existing 


212  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

order  of  things  unsparingly.  He  charmed  the  emperor  Chiu- 
tsoung  with  his  briUiant  presentation  of  his  doctrines  and 
gained  great  influence  over  him.  In  the  sketch  taken  from 
the  work  of  M.  Abel  Remusat  his  teachings  are  thus  sum- 
marized : 

''The  first  and  most  essential  duty  of  a  government  is  to 
love  the  people  and  to  procure  them  the  real  advantages  of 
life,  which  are  plenty  and  pleasure.  To  accomplish  this  ob- 
ject it  would  suffice  to  inspire  everyone  with  the  unvarying 
principles  of  rectitude,  but,  as  all  might  not  observe  them, 
the  state  should  explain  the  manner  of  following  these  pre- 
cepts, and  enforce  obedience  by  wise  and  inflexible  laws.  In 
order  to  prevent  the  oppression  of  man  by  man  the  state 
should  take  possession  of  all  the  resources  of  the  empire  and 
become  the  sole  master  and  employer.  The  state  should  take 
the  entire  management  of  commerce,  industry  and  agricul- 
ture, into  its  hands  with  the  view  of  succoring  the  working 
classes  and  preventing  their  being  ground  to  the  dust  by 
the  rich." 

Tribunals  were  to  be  established  to  fix  the  prices  of  pro- 
visions and  merchandise  and  taxes  to  be  imposed  exclusively 
on  the  rich  for  a  certain  number  of  years.  Aged  paupers  and 
unemployed  working  men  were  to  be  relieved  from  the  treas- 
ury. The  state  was  to  be  the  only  proprietor  of  the  land, 
which  should  be  assigned  to  the  farmers  by  public  authorities, 
who  should  also  distribute  seed,  to  be  returned  after  harvest. 
The  leading  opponent  of  these  doctrines  was  Sse-ma-kouang, 
who  employed  modern  arguments  in  opposition  to  these 
schemes.  Wangngan-Chi  was  given  full  authority  to  put  his 
reforms  in  operation  and  maintained  his  ascendency  through- 
out the  reign  of  Cheu-tsoung.  He  added  his  own  commen- 
taries to  the  classical  books,  and  reformed  the  examinations 
for  literary  grades  to  correspond  with  his  own  views.  This 
brought  down  on  him  the  hostility  of  the  literati  as  well  as 
of  all  the  privileged  classes,  and  on  the  death  of  the  emperor 
he  was  deposed  and  his  rival  put  in  power.  At  the  death  of 
Sse-ma-Kouang  great  honors  were  done  his  memory.  Later 
there  was  a  revulsion  of  sentiment  and  his  tomb  was  dese- 


CHINA  213 

crated  and  great  honors  were  paid  to  the  memory  of  Wang- 
ngan-Chi.  While  according  to  Hue  Chinese  historians  record 
the  ill  success  of  these  schemes,  the  institutions  of  China  seem 
to  bear  some  marks  of  his  doctrines  at  this  day  as  will  appear 
more  fully  when  we  enter  on  a  consideration  of  the  existing 
system.  On  the  other  hand  it  is  said  that  the  reign  of  Chiu- 
tsoung,  lasting  forty-one  years,  is  the  brightest  period  of 
the  dynasty.  Certain  it  is  that  the  discussion  carried  on  at 
this  time  produced  a  profound  impression  on  Chinese  polity. 

Between  1127  and  11 63  the  Kins  pushed  their  conquests 
till  they  overran  the  northern  provinces  of  Chi-li,  Shen-se, 
Shan-se  and  Ho-nan  and  even  advanced  to  the  Yang-tsze- 
Kiang.  At  this  time  the  power  of  the  Mongols  was  growing. 
The  invasion  of  China  under  Jenghiz  Kahn  commenced  in 
1 2 12.  He  first  attacked  the  Kins  and  overran  most  of  the 
country  occupied  by  them.  He  was  succeeded  by  his  son 
Ogdai  who  completed  the  overthrow  of  the  Kin  dynasty. 
Among  the  Mongols  codes  of  laws  were  unknown,  but  Ogdai 
found  it  necessary  to  promulgate  a  code  and  divide  his  new 
and  populous  dominions  into  ten  departments.  Ogdai  was 
followed  after  two  brief  intervening  reigns  by  Mangu,  who 
extended  his  conquests  to  the  ^outh  as  far  as  Cochin  China. 
On  his  death  in  1259  he  was  succeeded  by  the  illustrious  Ku- 
blai,  who  completed  the  subjugation  of  the  empire  and  ruled 
from  the  Yellow  Sea  to  the  Dnieper  and  from  the  Arctic  al- 
most to  the  Strait  of  Malacca.  This  was  the  first  foreign 
dynasty  ever  established  over  all  China. 

The  ambassadors  sent  by  the  Emperor  Theodosius,  A.D. 
284  do  not  seem  to  have  given  any  extended  report  of  what 
they  saw  in  China.  In  the  Arab  ''Chain  of  Chronicles"  is 
contained  an  account  of  a  visit  to  the  Chinese  court  by  Ibn- 
Vahab  in  the  ninth  century.  The  description  of  what  he  saw, 
though  meager,  corresponds  with  other  accounts  of  the  state 
of  the  empire  at  that  time.  To  Marco  Polo  we  are  indebted 
for  the  first  full  and  satisfactory  account  of  China  and  its 
civilization.  His  visit  was  during  the  reign  of  Kublai,  whose 
empire  was  then  the  most  extensive  ever  established  in  Asia, 
so  far  as  is  known.     His  description  of  the  court  and  life  of 


214  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Kublai  exhibits  a  combination  of  the  customs  of  the  Tartar 
nomad  and  the  ceremonious  Chinese  courtier.  During  De- 
cember, January  and  February,  the  emperor  resided  in  the 
palace  at  Kambalu.  This  palace  is  described  as  a  complete 
square,  a  mile  on  each  side.  This  is  but  the  outer  wall  and 
edifices;  within  are  others  affording  accommodations  of  all 
sorts  for  the  people  and  their  stores  of  goods,  etc.  and  gardens 
with  game  preserves,  and  fish  ponds.  The  inner  palace  he 
says  "is  the  greatest  that  ever  was  seen.  The  floor  rises  ten 
palms  above  th^  ground  and  the  roof  is  exceedingly  lofty. 
The  walls  of  the  chambers  and  stairs  are  all  covered  with 
gold  and  silver  and  adorned  with  pictures  of  dragons,  horses 
and  other  races  of  animals.  The  hall  is  so  spacious  that  6,000 
can  sit  down  to  banquet,  and  the  number  of  apartments  is 
incredible.  The  roof  is  externally  painted  with  red,  blue, 
green  and  other  colors  and  is  so  varnished  that  it  shines  like 
crystal  and  is  seen  to  a  great  distance  around.  It  is  also  very 
strong  and  durably  built." 

The  city  is  described  as  very  large  with  broad,  straight  and 
regular  streets  inclosed  by  a  wall  with  twelve  gates  at  each 
of  which  1,000  men  kept  guard.  Around  the  city  were  twelve 
very  populous  suburbs  containing  many  stately  edifices.  The 
guard  of  the  great  Kahn  consisted  of  12,000  horsemen.  The 
festivals  held  on  the  Kahn's  birthday  and  the  beginning  of  the 
new  year  were  celebrated  with  great  magnificence  and  the 
making  of  presents.  On  the  latter  day  the  presents  from  those 
holding  land  and  offices,  he  states,  included  vast  quantities  of 
gold,  silver,  precious  stones  and  merchandise,  5,000  camels, 
100,000  white  horses  and  5,000  elephants,  all  of  which  were 
exhibited  in  a  grand  procession.  For  hunting  he  kept  leop- 
ards, lynxes  or  stag-wolves  and  lions,  as  well  as  dogs.  On 
his  great  hunts  he  was  attended  by  two  parties  of  10,000  men 
each  with  5,000  dogs.  Besides  these  he  had  great  numbers  of 
gerfalcons,  vultures  and  falcons  for  hunting.  At  the  expira- 
tion of  the  three  winter  months,  the  great  Kahn  sallied  forth 
with  a  vast  retinue.  At  a  place  named  Choccia  he  pitched  his 
tents,  10,000  in  number.  That  in  which  he  held  court  was 
of  sufficient  size  for  1,000  knights,  but  he  resided  in  another. 


CHINA  215 

The  inside  of  this  was  Hned  with  the  finest  furs.  No  one 
was  permitted  to  take  game  from  March  to  October,  nor  to 
keep  dogs  or  falcons  within  twenty  days'  journey  from  his 
residence.  At  Shandu  in  Tartary  he  had  a  very  large  palace, 
which  he  occupied  while  hunting  in  that  region  and  as  a  resi- 
dence in  June,  July  and  August.  The  great  number  of  horses, 
dogs  and  other  animals  and  the  custom  of  moving  from  place 
to  place  and  dwelling  in  tents  and  movable  palaces,  accords 
with  the  inherited  tastes  and  habits  of  the  Tartar,  while  the 
elaborate  ceremonials  at  the  capital  and  elsewhere  show  the 
influence  of  Chinese  customs  on  the  Kahn.  The  description 
of  the  cities  and  country  visited  by  Marco  clearly  shows  how 
fully  the  great  Chinese  mass  retained  its  habits,  manners  and 
customs,  and  how  little  effect  the  Tartar  conquest  had  on 
Chinese  civilization  throughout  the  empire.  The  Tartar 
hordes  were  able  to  overcome  the  Chinese  armies,  but  the 
countless  multitude  of  busy  farmers,  manufacturers  and 
traders  plodded  along  the  same  as  before,  using  the  old  lan- 
guage, literature  and  customs.  Marco  describes  separately 
thirty-five  different  cities.  He  devotes  the  most  space  to 
Kin-sai,  modern  Hang  Chau,  which  he  says  was  without  doubt 
the  largest  city  in  the  world.  The  magnificence  of  its  streets, 
stone  bridges,  buildings,  canal,  lake,  boats,  markets  and  shops, 
as  well  as  on  the  great  multitude  of  people  and  endless  quanti- 
ties of  all  the  necessaries  of  life,  he  details  at  length.  In  all 
the  cities  he  visited  he  was  astonished  at  the  numbers  of 
people  and  the  abundance  of  the  provisions  for  their  comfort. 
Peace  and  plenty  were  the  rule  through  the  empire,  with  but 
few  exceptions. 

Marco's  description  of  the  system  of  government  and  of 
the  laws  is  very  incomplete.  He  says  there  were  twelve  very 
great  barons,  who  held  command  over  all  things  in  the  thirty- 
four  provinces.  They  all  resided  in  the  city  of  Kambalu, 
managed  all  the  provincial  affairs  according  to  their  will  and 
appointed  the  lords  of  the  provinces'.  For  every  province 
there  was  an  agent  and  a  number  of  writers  or  notaries.  The 
twelve  barons,  called  scieng  in  the  Tartar  language,  ordered 
the  army  to  move  wherever  they  willed,  subject  to  the  direc- 


2i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tion  of  the  great  Kahn.  These  are  probably  the  same  officers 
he  refers  to  as  a  council  of  twelve  persons,  having  power  to 
dispose  of  the  lands,  governments  and  all  things  belonging 
to  the  state,  though  not  necessarily  so.  That  arbitrary  power 
was  exercised  by  the  Kahn  and  his  chief  officers  on  occasion 
is  clearly  manifest  from  the  account  he  gives  of  the  corruption 
and  oppression  exercised  by  a  Saracen  named  Achmac.  He 
gained  so  great  influence  over  the  Kahn  that  no  one  dared  to 
oppose  him.  ''Any  charged  by  him  with  a  capital  offence, 
whatever  means  he  might  employ  to  justify  himself  and 
refute  the  accusation,  could  not  find  an  advocate,  for  none 
dared  to  oppose  the  purpose  of  Achmac.  Thus  he  unjustly 
caused  the  death  of  many,  and  was  also  enabled  to  indulge 
his  unlawful  propensities.  Whenever  he  saw  a  woman  who 
pleased  him,  he  contrived  either  to  add  her  to  the  number  of 
his  wives  or  to' lead  her  into  a  criminal  intimacy."  This  sway 
continued  twenty-two  years.  Finally  the  Kataians  formed  a 
plot  against  him  and  killed  him  in  the  palace.  For  this  the 
ringleaders  were  summarily  executed.  On  the  return  of 
Kublai,  who  was  absent  from  Kambalu  at  the  time,  he  in- 
ouired  into  the  cause  of  the  trouble  and,  finding  Achmac's 
seven  sons  equally  guilty  with  their  father,  who  had  conferred 
high  offices  on  them,  he  caused  them  to  be  flayed  alive. 

The  facilities  for  communication  with  remote  provinces 
were  exceptionally  fine.  Great  routes  were  established  along 
which,  at  intervals  of  from  twenty-five  to  forty  miles,  com- 
modious inns,  well  provided  with  comforts,  were  established, 
in  connection  with  which  horses  in  great  abundance  were 
constantly  kept.  Public  officials  and  messengers  were  lodged 
at  these  inns  and  furnished  relays  of  horses.  Of  these  inns 
there  were  more  than  10,000  and  of  horses  kept  in  connection 
with  them  more  than  200,000.  At  intervals  between  these 
stations  were  others  of  foot  runners,  three  miles  apart,  who 
carried  letters  and  packages  from  station  to  station  at  the 
rate  of  100  miles  a  day,  while  horsemen  made  from  200  to 
300  miles  in  twenty-four  hours.  Similar  inns  and  couriers 
on  foot  and  on  horseback  are  still  maintained  in  some  parts. 
The  paternal  care. of  the  great  Kahn  over  his  people  Marco 
praises  in  this  language. 


CHINA  217 

"He  sends  his  messengers  through  all  his  kingdoms  and 
provinces,  to  know  if  any  of  his  subjects  have  had  their  crops 
injured  through  bad  weather  or  any  other  disaster,  and  if  such 
injury  has  happened  he  does  not  exact  from  them  any  tribute 
for  the  season  or  year,  nay  he  gives  them  corn  out  of  his  own 
stores  to  subsist  upon  and  to  sow  their  fields.  This  he  does  in 
summer,  in  winter  he  inquires  if  there  has  been  a  mortality 
among  the  cattle  and  in  that  case  grants  similar  exemption 
and  aid.  When  there  is  a  great  abundance  of  grain  he  causes 
magazines  to  be  formed,  to  contain  wheat,  rice,  millet  or 
barley,  and  care  to  be  taken  that  it  be  not  lost  or  spoiled :  then 
when  a  scarcity  occurs  this  grain  is  drawn  forth  and  sold  for 
a  third  or  fourth  of  the  current  price."  The  monetary  sys- 
tem Marco  thus  describes, 

''With  regard  to  the  money  of  Kambalu,  the  great  Kahn 
may  be  called  a  perfect  alchymist,  for  he  makes  it  himself. 
He  orders  people  to  collect  the  bark  of  a  certain  tree  whose 
leaves  are  eaten  by  the  worms  that  spin  silk.  The  thin  rind, 
between  the  bark  and  the  interior  wood,  is  taken  and  from  it 
cards  are  formed  like  those  of  paper,  all  black.  He  then 
causes  them  to  be  cut  in  pieces  and  each  is  declared  worth 
respectively  half  a  livre,  a  whole  one,  a  silver  grosso  of  Venice 
and  so  on  to  the  value  of  ten  bezants.  All  these  cards  are 
stamped  with  his  seal,  and  so  many  are  fabricated  that  they 
would  buy  all  the  treasuries  in  the  world.  He  makes  all  his 
payments  in  them  and  circulates  them  through  the  kingdom 
and  provinces  over  which  he  holds  dominion,  and  none  dares 
to  refuse  them  under  pain  of  death.  All  the  nations  under 
his  sway  receive  and  pay  this  money  for  their  merchandise, 
gold,  silver,  precious  stones  and  whatever  they  transport, 
buy  or  sell.  The  merchants  often  bring  to  him  goods  worth 
400,000  bezants  and  he  pays  them  all  in  these  cards,  which 
they  willingly  accept,  because  they  can  make  purchases  with 
them  throughout  the  whole  empire.  He  frequently  commands 
those  who  have  gold,  silver,  cloths  of  silk  and  gold,  or  other 
precious  commodities  to  bring  them  to  him.  Then  he  calls 
twelve  men  skillful  in  these  matters,  and  commands  them  to 
look  at  the  articles  and  fix  their  price.     Whatever  they  name 


2i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

is  paid  in  these  cards,  which  the  merchant  cordially  receives. 
In  this  manner  the  great  sire  possesses  all  the  gold,  silver, 
pearls  and  precious  stones  in  his  dominions.  When  any  of 
the  cards  are  torn  or  spoiled  the  owner  carries  them  to  the 
place  where  they  were  issued  and  receives  fresh  ones  with  a 
deduction  of  three  per  cent.  If  a  man  wishes  gold  or  silver 
to  make  plate,  girdles  or  other  ornaments,  he  goes  to  the  office, 
carrying  a  sufficient  number  of  cards,  and  gives  them  in  pay- 
ment for  the  quantity  which  he  requires.  This  is  the  reason 
why  the  great  Kahn  has  more  treasure  than  any  other  lord 
in  the  world,  nay  all  the  princes  in  the  world  together  have 
not  an  equal  amount."  This  currency  went  out  of  use  on  the 
expulsion  of  the  Mongols.  The  new  dynasty  issued  notes  at 
first  but  discontinued  them  about  1455. 

Kublai  was  tolerant  of  all  religions  and  employed  Saracens, 
Christians  and  Buddhists  as  well  as  idolators  of  all  kinds  and 
unbelievers.  His  domestic  establishment  was  on  a  grand  scale. 
He  had  four  wives,  each  of  whom  ranked  as  an  empress  and 
had  300  maidens  with  eunuchs  and  other  attendants.  Besides 
these  he  had  his  concubines.  By  his  wives  he  had  twenty- 
two  sons  and  by  his  concubines  twenty-five.  How  many 
daughters  is  not  stated.  Marco  speaks  of  the  manufacture 
of  beautiful  porcelain,  describes  how  all  the  people  burn  black 
stones  instead  of  wood,  and  drink  wine  made  from  rice  and 
many  good  spices.  In  Kin-sai  each  householder  had  written 
on  his  door  the  name  of  all  the  members  of  his  household, 
which  he  revised  when  a  birth  or  death  occurred.  This  is 
still  required.  What  most  impressed  Marco  was  the  peace, 
good  order,  abundance  of  wealth  and  patient  industry  of  the 
people.  He  also  highly  praises  the  integrity  of  the  merchants 
of  Kin-sai.  Perhaps  the  most  lasting  monument  to  the  energy 
and  public  policy  of  Kublai  is  the  grand  canal  which  he  ex- 
tended and  greatly  improved. 

After  the  death  of  the  great  Kahn  the  Mongol  dynasty  was 
continued  under  Timur  his  grandson,  and  Wu  Tsung,  Ching 
Tsung  last  of  the  line  came  to  the  throne  at  thirteen,  a  weak 
debauchee.  Hung  Wu,  a  plebeian  and  former  Buddhist  priest, 
headed  a  revolt,  which  resulted  in  the  expulsion  of  the  Mon- 


CHINA  219 

gols  and  his  elevation  to  the  throne  as  the  founder  of  the 
Ming  Dynasty.  He  estabhshed  his  capital  at  Nanking  and 
reigned  thirty  years.  He  named  his  grandson  as  his  succes- 
sor, but  his  son  Yung-loh  after  five  years  seized  the  crov^n 
and  moved  the  capital  back  to  Peking  in  1403.  He  promul- 
gated a  code  of  lav^^s,  framed  under  his  direction,  v^hich  is  the 
basis  of  the  existing  system  of  today.  In  161 6  the  Manchu 
Tartars  invaded  China  and  defeated  the  force  sent  against 
them.  Rebellions  followed  in  the  provinces,  by  taking  ad- 
vantage of  v^hich  and  judiciously  combining  with  one  or  other 
of  the  factions,  the  Manchus  finally  gained  complete  ascend- 
ency and  in  1644  Shun-che  was  proclaimed  emperor  and  foun- 
der of  the  Tsing  dynasty,  which  continued  in  power  till  the 
revolution  of  191 2.  The  whole  empire  was  not  reduced  at 
once,  but  by  a  policy  combining  vigor  in  war  with  humane 
treatment  of  those  who  submitted,  all  opposition  to  the  new 
dynasty  was  gradually  overcome. 

A  strange  exhibition  of  power  was  that  by  which  the  people 
were  required  to  adopt  the  Tartar  mode  of  shaving  the  front 
of  the  head  and  braiding  the  hair  in  a  long  cue.  To  introduce 
and  enforce  a  fashion  by  command  even  of  a  despot,  is  some- 
thing rarely  attempted  and  much  more  rarely  enforced  and 
maintained.  This  mode  of  wearing  the  hair,  now  a  distinctive 
mark  of  the  Chinaman,  thus  appears  to  be  a  Manchu  fashion 
forcibly  imposed  on  the  Chinese.  It  is  said  that  many  pre- 
ferred to  lose  their  heads  rather  than  submit  to  this  badge 
of  subjection. 

Kang-hi,  son  and  successor  of  Shun-che,  ascended  the  im- 
perial throne  in  1661  when  only  eight  years  old.  He  was  a 
contemporary  of  Louis  XIV,  who  became  sovereign  of  France 
the  same  year.  The  reign  of  Kang-hi  was  long  and  illustrious, 
lasting  sixty-one  years.  He  extended  the  boundaries  of  the 
empire  and  devoted  his  energies  with  indefatigable  diligence 
to  the  improvement  of  the  system  of  government.  His  son 
Yung-ching  succeeded  him  in  1722  and  ruled  sixteen  years 
with  great  satisfaction  to  his  subjects.  He  was  succeeded  by 
Kien-hung  his  son  who  ruled  mainly  in  peace  for  sixty  years. 
In  his  reign  intercourse  with  western  nations  was  established 


220  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  embassies  were  received  from  Russia,  England  and 
Holland. 

The  first  three  Manchu  sovereigns  thus  ruled  the  empire 
with  prudence  and  vigor  for  one  hundred  and  thirty-five  years, 
with  few  wars  either  at  home  or  abroad,  and  none  seriously 
threatening  the  integrity  of  the  empire.  Subsequent  reigns 
have  been  less  fortunate  and  rebellions  and  foreign  wars 
have  become  more  frequent.  The  government  during  the 
last  century  has  been,  for  the  most  part,  without  vigor,  and 
the  universal  law  which  ultimately  brings  ruin  on  every 
hereditary  dynasty  has  just  brought  this  to  the  end.  The 
decay  of  despotic  power  does  not  necessarily  indicate  retro- 
gression on  the  part  of  the  nation  but  is  often,  nay  usually, 
the  forerunner  of  distinct  advancement.  Weakness  on  the 
part  of  the  government  always  induces  disorders,  but  these 
are  often  prompted  by  a  desire  for  better  conditions.  In 
spite  of  all  the  vices  and  imperfections  of  its  rulers,  the  pecul- 
iar civilization  of  the  Chinese  has  been  preserved  and  the 
almost  incredible  number  of  its  people  has  continued  to  in- 
crease. The  accounts  of  the  military  operations  of  its  rulers 
and  of  rebel  leaders,  are  calculated  to  convey  erroneous  im- 
pressions as  to  the  military  qualities  and  army  service  of  the 
people  in  general.  In  western  countries  great  wars  have 
usually  called  out  a  very  large  proportion  of  the  whole  number 
of  males  of  military  age.  Not  so  in  China.  The  greatest 
army  ever  raised  in  the  whole  empire  probably  never  exceeded 
one  out  of  a  hundred  of  the  whole  population.  During  the 
greatest  wars  and  the  most  serious  rebellions,  trade,  agri- 
culture and  manufacture,  except  in  the  immediate  locality  of 
the  strife,  have  gone  on  without  very  serious  interruption. 
Thus  the  character  of  the  Chinese  people  and  of  Chinese 
civilization  has  been  essentially  unmilitary  ever  since  the  con- 
solidation of  the  vast  empire. 

All  authorities  agree  that  the  fundamental  idea  of  the 
Chinese  government  was  patriarchal.  The  emperor  was  re- 
garded on  the  one  hand  as  the  son  of  Heaven,  deriving  his 
power  directly  from  the  Supreme  Being,  and  on  the  other,  as 
the  father  and  mother  of  the  people,  responsible  for  their 


CHINA  221 

conduct  as  well  as  their  welfare.  He  w^as  the  supreme  legisla- 
tive, judicial  and  executive  power.  The  theory  of  the  origin 
of  his  power  is  not  essentially  different  from  that  of  other 
monarchs  who  rule  by  right  divine.  The  Chinese,  however, 
ingrafted  a  very  important  qualification  on  the  doctrine.  So 
long  as  the  emperor  ruled  well,  he  was  under  the  immediate 
protection  of  Heaven,  but  when  he  did  ill  it  was  an  indication 
that  the  favor  of  Heaven  had  been  withdrawn  from  him.  The 
attributes  of  the  princely  man,  taught  in  the  classics  as  the 
words  of  Confucius,  are  much  more  lofty  than  can  often  be 
found  on  a  throne.     In  the  "Invariable  Centre"  it  is  said : 

'Tt  is  only  the  man  supremely  holy,  who  by  the  faculty  of 
knowing  thoroughly  and  comprehending  perfectly  the  primi- 
tive laws  of  living  beings,  is  worthy  of  possessing  supreme 
authority  and  commanding  men,  who  by  possessing  a  soul 
grand,  firm,  constant  and  imperturbable  is  capable  of  making 
justice  and  equity  reign — who  by  his  faculty  of  being  always 
honest,  simple,  upright,  grave  and  just,  is  capable  of  attract- 
ing respect  and  veneration — who  by  his  faculty  of  being 
clothed  with  the  ornaments  of  the  mind  and  talents  procured 
by  assiduous  study  and  by  the  enlightenment  that  is  given  by 
an  exact  investigation  of  the  most  hidden  things  and  the  most 
subtle  principles,  is  capable  of  discerning  with  accuracy  the 
true  from  the  false  and  good  from  evil." 

Mencius,  who  stands  second  only  to  Confucius  in  the  esti- 
mation of  the  learned  Chinese,  said, 

"When  the  prince  is  guilty  of  great  errors  the  minister 
should  reprove  him:  if  after  doing  so  again  and  again  he 
does  not  listen,  he  ought  to  dethrone  him  and  put  another  in 
his  place." 

In  the  Ta-hio  or  Grand  Study  the  leading  principles  of 
government  are  thus  stated  by  Confucius, 

"The  ancient  princes  who  desired  to  develop  in  their  states 
the  luminous  principle  of  reason  that  we  have  received  from 
Heaven,  endeavored  first  to  govern  well  their  kingdoms ;  those 
who  desired  to  govern  well  their  kingdoms,  endeavored  first 
to  keep  good  order  in  their  families ;  those  who  desired  to 
keep  good  order  in  their  families  endeavored  first  to  correct 


222  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

themselves,  those  who  desired  to  correct  themselves  endeav- 
ored first  to  give  uprightness  to  their  souls,  those  who  desired 
to  give  uprightness  to  their  souls  endeavored  first  to  render 
their  intentions  pure  and  sincere,  those  who  desired  to  render 
their  intentions  pure  and  sincere  endeavored  to  perfect  as  much 
as  possible  their  moral  knowledge  and  examine  thoroughly 
their  principles  of  action." 

"All  men  the  most  elevated  in  rank  as  well  as  the  most 
humble  and  obscure  are  equally  bound  to  perform  their  duty. 
The  correction  and  amelioration  of  one's  self,  or  self -im- 
provement is  the  basis  of  all  progress,  and  of  all  moral  de- 
velopment." Where  is  there  anything  better  than  this  in  any 
language?    The  Grand  Study  concludes, 

"If  those  who  govern  states  only  think  of  amassing  riches 
for  their  personal  use,  they  will  infallibly  attract  toward  them 
depraved  men.  These  depraved  men  will  make  the  sovereign 
believe  that  they  are  good  and  virtuous,  and  these  depraved 
men  will  govern  the  kingdom.  But  the  administration  of  the 
unworthy  ministers  call  down  the  chastisement  of  Heaven 
and  excite  the  vengeance  of  the  people.  When  matters  have 
reached  this  point  what  ministers,  were  they  ever  so  good 
and  virtuous,  could  avert  misfortune?  Therefore  those  who 
govern  kingdoms  ought  never  to  make  their  private  fortune 
out  of  the  public  revenues,  but  their  only  riches  should  be 
justice  and  equity." 

As  the  teachings  of  Christ  have  failed  to  make  all  of  his 
professed  followers  in  the  west  live  according  to  the  golden 
rule,  so  also  the  teachings  of  Confucius,  studied  in  every 
school  in  the  empire,  and  a  profound  knowledge  of  which  is 
a  prerequisite  to  appointment  to  office,  have  yet  failed  to 
make  ideal  rulers  of  men  corrupt  by  nature,  yet  that  his 
doctrines  have  wielded  a  powerful  influence  for  good  cannot 
be  doubted.  The  recognition  of  the  classical  books  as  author- 
ity on  moral  and  political  questions  operated  as  a  limitation 
on  the  despotic  powers  of  the  emperor  in  much  the  same 
way  that  the  unwritten  British  constitution  limits  the  power 
of  the  king,  lords  and  commons.  The  vast  and  complicated 
machinery  of  a  government,  ruling  so  many  millions  of  peo- 


CHINA  223 

pie,  also  necessitated  system  and  order,  which  could  not  be 
maintained  under  a  government  responding  solely  to  the 
arbitrary  will  of  a  despot.  The  checks  and  balances  of  the 
system,  though  designed  mainly  to  restrain  subordinate  offi- 
cers within  the  legitimate  bounds  of  their  authority,  operated 
also  to  limit  the  powers  of  the  emperor,  in  whom  theoretically 
all  power  was  vested. 

Under  the  Manchu  dynasty  the  succession  to  the  throne 
was  hereditary  in  the  male  line.  The  particular  person  was 
designated  by  the  sovereign,  but  kept  concealed  until  after  his 
death.  The  person  designated  ceased  to  b<i  known  by  his 
personal  name  from  the  time  of  his  accession  to  the  throne 
and  was  given  a  new  name  which  is  rather  the  name  of  his 
reign  than  of  himself.  The  deceased  emperor  was  given  a 
posthumous  name  by  which  he  is  known  in  history.  When 
by  revolutions  a  new  dynasty  was  established,  it  received  a 
name  which  is  continued  till  a  new  family  accedes  to  power. 

The  imperial  clan  consisted  of  two  classes.  First  the 
Tsung-shih,  lineal  descendants  of  Tien-Mings'  father,  Hien- 
tsu  who  assumed  the  title  of  emperor  in  1616.  Second  the 
collateral  branches  including  the  children  of  his  uncles  and 
brothers  who  were  collectively  called  Gioro.  In  the  Tsung- 
shih  there  were  twelve  degrees  of  rank.  They  were  for  the 
most  part  shut  out  from  useful  employments  and  received 
small  allowancs.  The  titular  nobility  of  the  empire  were  not 
a  rich  and  powerful  body,  but  without  power,  land,  wealth, 
or  influence.  The  near  kmsmen  of  the  emperor  received 
liberal  allowances,  while  the  lowest  orders  were  given  mere 
pittances.  The  imperial  clan  governed  Manchuria  and  indi- 
viduals were  given  such  appointments  in  the  empire  as  the 
emperor  saw  fit.  Besides  these  there  were  five  ancient  orders 
of  nobility,  the  titles  of  which  cannot  be  accurately  trans- 
lated.   The  descendants  of  Confucius  received  especial  honor. 

The  government  of  the  Imperial  court  was  under  the  gen- 
eral supervision  of  a  board  styled  the  Nui-wti-fu  composed  of 
a  president  and  six  assessors  under  whom  were  seven  subordi- 
nate departments.  These  officers  attended  the  emperor  and 
empress  at  sacrifice  and  oversaw  the  households  of  the  em- 


224  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

peror's  sons,  as  well  as  directed  the  care  and  supplies  of  the 
palace  and  imperial  guard.  The  seven  departments  had  duties 
distributed  as  follows :  to  one  the  supply  of  food  and  raiment, 
to  the  second,  regulation  of  the  emperor's  body  guard,  the 
third  regulated  domestic  etiquette  and  brought  the  inmates 
of  the  harem,  led  by  the  empress,  to  do  homage  to  the  em- 
peror, the  fourth  selected  ladies  to  fill  the  harem  and  collected 
the  revenue  from  crown  lands,  the  fifth  attended  to  repairs 
of  the  palace  and  cleaning  of  the  city  streets  for  the  use  of 
the  royal  family,  the  sixth  had  charge  of  the  emperor's  herds 
and  flocks  and  the  seventh  was  a  court  for  the  punishment  of 
crimes  in  and  about  the  palace.  The  work  of  the  imperial 
household  was  performed  by  about  2,000  eunuchs.  There  was 
but  one  empress,  but  the  emperor  was  entitled  to  seven  legal 
concubines  and  actually  kept  as  many  illegal  ones  as  he  pleased. 
Every  third  year  he  looked  over  the  Manchu  daughters  and 
chose  such  as  he  liked  for  concubines.  They  were  restored 
to  liberty  at  twenty-five,  unless  they  had  borne  children  to 
the  emperor. 

The  empress  dowager  was  the  most  important  subject  in 
the  palace  and  was  paid  special  honor  by  the  emperor.  The 
government  of  the  empire  was  carried  on  through  the  instru- 
mentality of  a  very  complex  official  system.  First  and  closest 
to  the  emperor  were  two  councils,  the  Nui-Koh  or  cabinet 
which  consists  of  four  principals  and  two  assistants,  half 
Manchus  and  half  Chinese.  Their  duties  were  to  "deliberate 
on  the  government  of  the  empire,  proclaim  abroad  the  im- 
perial pleasure,  regulate  the  canons  of  state,  together  with 
the  whole  administration  of  the  great  balance  of  power,  thus 
aiding  the  emperor  in  directing  the  affairs  of  state." 

Subordinate  to  these  were  six  grades  of  officers  numbering 
in  all  over  200,  more  than  half  Manchus.  Under  the  six  chan- 
cellors were  ten  assistants  and  some  of  these  were  constantly 
absent  in  the  provinces.  The  principal  business  of  this  cabi- 
net was  to  receive  imperial  edicts  and  rescripts,  present  mem- 
orials, lay  before  the  emperor  the  affairs  of  the  empire, 
procure  his  instructions  thereon  and  forward  them  to  the 
proper  office  to  be  copied  and  promulgated.     The  papers  in 


CHINA  225 

matters  for  consideration  were  arranged  and  slips  of  sug- 
gested answers  were  attached  when  they  were  presented  to 
the  emperor  for  his  decision.  Dayhght  in  the  morning  was 
the  hour  for  commencing  his  work.  Each  document  was  first 
read  by  one  of  the  Manchu  hioh-ss,  who  then  handed  it  to  a 
Chinese  hioh-s2  who  passed  it  to  the  emperor.  By  a  stroke 
of  the  vermihon  pencil  he  indicated  the  answer  to  be  made. 
Appointments  to  office,  removals,  degradations,  orders  relat- 
ing to  taxes,  the  army,  the  provinces,  etc.,  were  thus  rapidly 
made. 

The  members  of  this  cabinet  separately  also  had  other 
duties  to  perform  in  connection  with  bureaus  to  which  they 
were  attached  and  in  presiding  on  state  occasions.  They 
were  also  keepers  of  the  twenty-five  great  seals  of  the  gov- 
ernment, each  of  which  was  of  special  design  and  for  par- 
ticular uses.  Subordinate  officers  attached  to  the  cabinet 
translated  documents  into  the  various  languages  found  in  the 
empire. 

The  Kiun-ki-Chu,  council  of  state,  was  organized  about 
T730  and  was  for  a  time  the  most  influential  body  under  the 
emperor.  The  numbers  of  this  council,  usually  about  four, 
varied  at  the  pleasure  of  the  emperor  by  whom  they  were  se- 
lected. Its  duties  were  "to  write  imperial  edicts  and  decisions, 
and  determine  such  things  as  are  of  importance  to  the  army 
and  nation  in  order  to  aid  the  sovereign  in  regulating  the 
machinery  of  affairs."  They  assembled  in  the  palace  between 
five  and  six  in  the  morning.  The  emperor's  commands  were 
written  down  by  them  and,  if  public,  transmitted  to  the  inner 
council  to  be  promulgated,  but,  if  the  matter  required  secrecy 
or  haste,  a  dispatch  was  forthwith  made  up  and  sent  to  the 
Board  of  War  to  be  forwarded.  In  all  important  trials  or 
consultations,  this  council  was  called  in  and  acted  either  sepa- 
rately or  in  connection  with  the  appropriate  court.  Lists  of 
officers  entitled  to  promotion  were  kept  by  it  and  names  to 
fill  vacancies   furnished  the  emperor. 

The  duties  of  these  supreme  councils  were  general,  covered 
all  departments  of  the  government  and  served  to  connect  the 
head  of  the  empire  with  all  subordinate  bodies  at  the  capital 


226  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  in  the  provinces.  Under  such  a  system,  very  much  de- 
pended on  the  personal  character  of  the  emperor.  The  King 
Poo  commonly  called  the  Peking  Gazette  was  compiled  from 
the  papers  presented  before  the  General  Council.  Every 
morning  ample  extracts  from  the  papers  decided  upon  by  the 
emperor,  including  orders  and  rescripts,  were  placarded  on 
boards  in  a  court  of  the  palace.  Couriers  were  dispatched  to 
all  parts  of  the  country  with  copies  of  these  papers  for  local 
officials.  Certain  persons  were  also  permitted  to  print  these 
documents,  but  without  comment  or  change,  and  circulate 
them  to  their  customers.  This  was  the  Gazette  and  was  simply 
a  record  of  official  acts.  It  was  very  generally  read  by  edu- 
cated people  and  kept  them  informed  of  the  proceedings  of 
the  government.  In  the  provinces,  abridged  editions  were 
made  for  readers  not  able  to  take  the  complete  one. 

Under  these  two  principal  councils  were  the  Ltih-Pu  or  six 
boards,  of  ancient  origin.  At  the  head  of  each  board  were 
two  presidents  and  four  vice-presidents  alternately  Manchus 
and  Chinese,  and  over  those  of  Revenue,  War  and  Punish- 
ments were  also  superintendents  who  were  frequently  mem- 
bers of  the  Cabinet.  Sometimes  the  president  of  one  board 
was  superintendent  of  another.  There  were  three  subordinate 
grades  of  officers  in  each  board  and  a  great  number  of  clerks 
for  details.  The  organization  of  the  departments  was  very 
complete  and  systematic. 

(i)  The  Li  Pu  or  Board  of  Civil  Office,  ''has  the  govern- 
ment and  direction  of  all  the  various  officers  in  the  civil  ser- 
vice of  the  empire  and  thereby  it  assists  the  emperor  to  rule 
all  the  people"  and  their  duties  included  ''whatever  appertains 
to  the  plans  of  selecting  rank  and  gradation,  to  the  rules  de- 
termining degradation  and  promotion,  to  the  ordinances  grant- 
ing investures  and  rewards,  and  the  laws  for  fixing  schedules 
and  furloughs  that  the  civil  service  may  be  supplied."  Civil- 
ians were  presented  to  the  emperor  and  all  civil  and  literary 
officers  were  distributed  by  it,  but  the  cabinet  and  General 
Council  had  advisory  oversight  of  the  high  appointments. 
The  board  was  divided  into  four  bureaus.  The  first  attended 
to  distinctions,  promotions  and  exchange  of  offices.     The  sec- 


CHINA  227 

ond  investigated  the  merits  and  demerits  of  officers  and  their 
worthiness  to  be  advanced  or  degraded  and  prescribed  fur- 
loughs. The  third  regulated  retirements  from  office  for 
mourning  or  filial  duties,  and  supervised  the  registration  of 
official  names.  The  fourth  regulated  the  distribution  of  titles, 
patents  and  posthumous  honors.  Posthumous  honors  were 
highly  regarded  by  the  Chinese  and  theirs  was  the  only  gov- 
ernment that  ennobled  dead  ancestors  for  the  merits  of  their 
descendants.  While  nominal  titles  for  the  living  might  be 
bought,  the  dead  received  honor  only  on  the  basis  of  their 
own  merits  or  those  of  their  offspring. 

(2)  The  H^i  Pit  or  Board  of  Revenue,  "directs  the  terri- 
torial government  of  the  empire  and  keeps  the  lists  of  popu- 
lation in  order  to  aid  the  emperor  in  nourishing  all  the  people ; 
whatever  appertains  to  the  regulations  for  levying  and  col- 
lecting duties  and  taxes,  to  the  plans  for  distributing  salaries 
and  allowances,  to  the  rates  for  receipts  and  disbursements 
at  the  granaries  and  treasuries  and  to  the  rights  for  trans- 
porting by  land  and  water,  are  reported  to  this  board,  that 
sufficient  supplies  for  the  country  may  be  provided."  It  also 
obtains  the  measurement  of  all  lands  in  the  empire,  and  ap- 
portions taxes  and  conscriptions  according  to  population,  etC; 
One  minor  office  of  this  board  prepared  lists  of  all  Manchu 
girls  fit  for  selection  as  inmates  of  the  imperial  harem.  There 
were  fourteen  subordinate  departments  to  attend  to  the  re- 
ceipt of  the  revenue  from  each  of  the  provinces,  each  of  which 
corresponded  with  the  treasury  department  in  its  respective 
province.  Some  of  the  revenue  was  paid  in  money,  some  in 
grain  and  merchandise  and  this  required  a  vast  force  to 
handle  it.  This  board  was  also  a  court  of  appeals  on  certain 
cases  respecting  property  and  superintended  the  mint  in  each 
province. 

(3)  The  Board  of  Rites,  "examines  and  directs  con- 
cerning the  performance  of  the  five  kinds  of  ritual  observ- 
ances and  makes  proclamations  thereof  to  the  whole  empire, 
thus  aiding  the  emperor  in  guiding  all  people.  Whatever 
appertains  to  the  ordinances  for  regulating  precedence  and 
literary  distinctions,  to  the  canons  for  maintaining  religious 


228  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

honor  and  fidelity,  to  the  orders  respecting  intercourse  and 
tribute  and  to  the  forms  of  giving  banquets  and  granting 
bounties,  are  reported  to  this  board .  in  order  to  promote 
national  education."  The  five  classes  of  rites  were  defined  to 
be,  those  of  a  propitious  and  those  of  a  felicitous  nature,  mil- 
itary and  hospitable  rites  and  those  of  an.infilicitous  nature. 
A  subordinate  department  of  this  bureau  regulated  the  eti- 
quette to  be  observed  at  court  on  all  occasions  and  in  the  per- 
formance of  official  duties,  also  styles  of  dress,  caps,  etc.,  the 
figure,  size,  color  and  nature  of  the  fabrics  and  ornaments 
worn,  carriages  and  accoutrements  and  number  of  followers 
and  insigna  of  rank  of  those  taking  part  in  public  affairs. 
It  also  regulated  the  ceremonial  of  personal  intercourse  be- 
tween persons  of  the  various  ranks,  minutely  defining  the 
number  of  bows  and  degree  of  attention  which  each  should 
pay  to  the  other  when  meeting  officially.  It  also  directed  the 
form  of  official  correspondence  and  regulated  the  literary  ex- 
aminations, number  of  graduates,  distinction  of  classes,  forms 
of  selection  and  privilege  of  successful  candidates  and  the 
establishment  of  government  schools.  Another  office  super- 
intended the  religious  rites  to  be  observed.  A  third  called 
''host  and  guest"  office  looked  after  tribute  and  tribute  bearers 
and  attended  to  foreign  embassies,  supplied  provisions  and 
interpreters  and  regulated  the  mode  of  intercourse  with  for- 
eign states.  The  fourth  supplied  the  food  for  banquets.  The 
details  of  the  duties  of  this  Board  filled  fourteen  volumes  of 
the  Statutes.  The  ancient  Book  of  Rites  is  the  foundation  of 
ceremonies  and  the  standard  to  be  followed.  Confucius  said 
"Truly  nothing  is  without  its  ceremonies"  and  careful  ob- 
servance of  the  rites  is  regarded  by  the  Chinese  as  the  certain 
test  of  refinement  and  gentility.  Connected  with  this  board 
was  a  Board  of  Music,  whose  duties  were  to  study  the  princi- 
ples of  harmony  and  melody,  to  compose  musical  pieces  and 
form  musical  instruments  and  suit  them  to  the  various  occas- 
ions where  they  were  required.  Official  music,  however,  was 
not  highly  regarded  by  foreigners. 

(4)   The  Ping  Pu  or  Board  of  War  "has  the  duty  of  aid- 
ing the  sovereign  to  protect  the  people  by  the  direction  of  all 


CHINA  229 

military  affairs  in  the  metropolis  and  provinces  and  to  regu- 
late the  hinge  of  the  state  upon  the  reports  received  from  the 
various  departments  regarding  deprivation  of,  or  appointment 
to  Office,  succession  to,  or  creation  of  hereditary  military 
rank :  postal  or  courier  arrangements,  examination  and  se- 
lection of  the  deserving  and  accuracy  of  returns."  The  navy 
was  also  under  this  Board.  The  management  of  the  post 
was  under  a  special  department  and  dispatches  were  trans- 
mitted by  an  efficient  system.  The  board  of  war  discharged 
its  duties  through  four  bureaus.  It  had  no  control  over  the 
household  or  city  troops,  nor  of  the  Bannermen  distributed 
throughout  the  empire. 

(5)  The  Hing  Pti  or  Board  of  Punishments,  "has  the  gov- 
ernment and  direction  of  punishments  throughout  the  empire 
for  the  purpose  of  aiding  the  sovereign  in  correcting  all 
people.  Whatever  appertains  to  measures  of  applying  the 
laws  with  leniency  or  severity,  to  the  task  of  hearing  evidence 
and  giving  decisions,  to  the  right  of  granting  pardons,  re- 
prieves or  otherwise  and  to  the  rate  of  fines  and  interest  are 
all  reported  to  this  Board,  to  aid  in  giving  dignity  to  national 
manners."  This  Board  had  both  civil  and  criminal  jurisdic- 
tion. Its  officers  met  with  those  of  the  Censorate  and  Tali  Ss 
and  the  three  formed  the  San  Foh  S2,  or  Three  Law  Cham- 
bers, which  decided  on  capital  cases  brought  before  them.  In 
the  autumn,  these  three  united  with  members  from  six  other 
courts,  forming  collectively  a  Court  of  Errors  to  review  the 
decisions  of  provincial  judges  before  reporting  them  to  the 
emperor.  They  were  required  to  conform  their  decisions  to 
the  laws  and  were  not  vested  with  any  arbitrary  powers.  Sub- 
ordinates of  this  Board  recorded  the  emperor's  decisions  on 
appeals  from  the  provinces  at  the  autumnal  sitting,  when  the 
entire  list  was  presented  for  the  emperor's  final  decision,  and 
saw  that  these  sentences  were  transmitted  to  the  provincial 
judges.  Another  office  superintended  the  publication  of  the 
code,  with  all  the  changes  and  additions.  A  third  oversaw 
jails  and  jailers.  A  fourth  received  fines  taken  in  commu- 
tation of  punishment,  and  a  fifth  registered  receipts  and 
expenditures. 


230  EVO'LUTION  OF  GOVERNMENTS  AND  LAWS 

(6)  The  Kung  Pu  or  Board  of  Works,  "has  the  govern- 
ment and  direction  of  the  pubhc  works  throughout  the  em- 
pire, together  with  the  current  expenses  of  the  same,  for  the 
purpose  of  aiding  the  emperor  to  keep  all  the  people  in  a 
state  of  repose.  Whatever  appertains  to  plans  for  buildings 
of  wood  or  earth,  to  the  forms  of  useful  instruments,  to  the 
laws  for  stopping  up  or  opening  channels,  and  to  the  ordi- 
nances for  constructing  the  mausolea  and  temples,  are  re- 
ported to  this  Board  in  order  to  perfect  national  works." 
The  work  of  the  bureaus  in  this  department  presents  a  singu- 
lar combination  of  duties.  One  bureau  supervised  the  con- 
dition of  city  walls,  palaces,  temples,  altars  and  other  public 
structures,  sat  as  a  prize  office,  furnished  tents  for  the  em- 
peror's journeys,  supplied  timber  for  ships,  and  pottery  and 
glassware  for  the  court.  Another  attended  to  the  manufac- 
ture of  military  stores  and  utensils  used  by  the  army,  sorted 
the  pearls  from  the  fisheries,  regulated  weights  and  measures, 
furnished  death  warrants  to  governors  and  generals,  and 
had  charge  of  arsenals,  stores,  camp  equipage  and  other  things 
appertaining  to  the  army.  A  third  had  charge  of  all  water 
ways  and  dikes,  repaired  and  dug  canals,  erected  bridges, 
oversaw  the  banks  of  rivers  by  deputies  stationed  along  their 
courses,  built  vessels  of  war,  collected  tolls,  mended  roads, 
dug  sewers  in  Peking  and  cleaned  out  its  gutters,  preserved 
ice,  made  bookcases  for  public  records  and  looked  after  the 
silks  collected  as  taxes.  The  fourth  attended  chiefly  to  the 
condition  of  the  imperial  mausolea,  the  erection  of  the  sepul- 
chers  and  tablets  of  meritorious  officers,  buried  at  public  ex- 
pense, and  the  adornment  of  temples  and  palaces,  and 
superintended  all  workmen  employed  by  the  Board.  The 
mint  was  under  the  direction  of  two  of  the  vice-presidents 
and  the  manufacture  of  gun  powder  was  intrusted  to  two 
ministers. 

The  Li  Fan  Yuen  commonly  called  the  Colonial  Office  had 
the  government  and  direction  of  the  external  foreigners, 
ordered  their  emoluments  and  honors,  appointed  their  visits 
to  court  and  regulated  their  punishments,  in  order  to  display 
the  majesty  and  goodness  of  the  state.     This  branch  of  gov- 


CHINA  231 

ernment  superintended  all  the  tribes  of  Mongolia,  Cobdo,  Hi 
and  Koko-nor.  These  are  called  "external  foreigners,"  to 
distinguish  them  from  the  tribes  of  Sz-chuen  and  Formosa 
who  are  termed  "internal  foreigners."  There  are  also  the 
"internal  barbarians,  comprising  the  unsubdued  mountaineers 
of  Kweichan,  and  the  "external  barbarians"  including  the 
people  of  all  foreign  countries.  The  Colonial  Office  regulated 
the  government  of  the  nomads  and  restricted  their  wander- 
ings. Its  officers  were  all  Manchus  and  Mongols.  Besides 
the  usual  secretaries  there  were  six  departments.  The  first 
two  had  jurisdiction  over  the  minor  tribes  of  Mongolia,  ap- 
pointed the  local  officers,  collected  taxes,  alloted  lands  to 
Chinese  settlers,  opened  roads,  paid  salaries,  arranged  mar- 
riage retinues,  visits  to  court,  presents  made  by  the  princes 
and  review  of  the  troops.  The  third  and  fourth  had  similar 
but  less  effectual  control  over  the  princes,  lamas  and  tribes 
of  outer  Mongolia.  The  fifth  department  directed  the  ac- 
tions, restrained  the  powers,  levied  the  taxes  and  ordered 
the  tributary  visits  of  the  Mohammedan  begs  in  the  Thian- 
shan,  Nan  Lu.  The  sixth  regulated  the  penal  discipline  of 
the  tributary  tribes.  Salaries  were  paid  the  MongoHan 
princes  according  to  an  established  scale.  A  tsin  wang  re- 
ceived $2,600  and  twenty-five  pieces  of  silk  per  year,  a  Kiitn- 
wang  $1,666  and  fifteen  pieces  of  silk  and  so  down  to  the 
lowest  in  rank  who  got  $133  and  four  pieces  of  silk.  The 
organization  of  these  nomadic  tribes  partakes  of  both  the 
feudal  and  tribal  system.  The  Chinese  policy  was  to  reduce 
the  power  of  the  chiefs  and  make  the  people  independent 
owners  and  cultivators  of  the  soil. 

The  Tu-chah  Yuen  or  Censorate,  "All  examining  Court" 
was  entrusted  with  the  "care  of  manners  and  customs,  the  in- 
vestigation of  all  public  offices  within  and  without  the  capital, 
the  discrimination  between  the  good  and  bad  performance  of 
their  business,  and  between  the  depravity  and  uprightness  of 
the  officers  employed  in  them;  taking  the  lead  of  other  cen- 
sors and  uttering  each  his  sentiments  and  reproofs,  in  order 
to  cause  officers  to  be  diligent  in  attention  to  their  daily  duties 
and  to  render  the  government  of  the  empire  stable." 


23>2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  Censorate  when  joined  with  the  Board  of  Punish- 
ments, and  Court  of  Appeals,  formed  a  high  court  for  the 
revision  of  criminal  cases  and  appeals  from  the  provinces; 
and  in  connection  with  the  Six  Boards  and  the  court  of 
Representation  and  Appeal,  made  one  of  the  Kin  King  or 
''Nine  Courts"  which  deliberated  on  important  affairs  of 
state.  The  officers  were  two  censors  and  four  deputy  cen- 
sors, besides  whom  the  governors,  lieutenant  governors  and 
governors  of  rivers  and  inland  navigation  were  ex-officio 
deputy  censors.  A  class  of  censors  was  placed  over  each  of 
the  Six  Boards  whose  duties  were  to  supervise  all  their  acts, 
to  receive  all  public  documents  from  the  Cabinet  and,  after 
classifying  them,  transmit  them  to  the  several  courts  to  which 
they  belonged,  and  to  make  a  semi-monthly  examination  of 
the  papers  entered  on  the  archives  of  each  court.  All  crimi- 
nal cases  in  the  provinces  were  under  the  oversight  of  the 
censors  at  the  capital,  and  also  the  department  which  super- 
intended the  affairs  of  the  metropolis,  revised  its  municipal 
acts,  settled  the  quarrels,  and  repressed  the  crimes  of  its  in- 
habitants. Theoretically  the  Censors  had  the  right  and  rested 
under  the  duty  of  expressing  their  opinions  and  criticising 
all  official  dereliction  coming  under  their  observation,  from 
the  emperor  down,  but  to  do  so  required  exceptional  courage 
and  uprightness,  seldom  found  among  politicians  anywhere 
and  especially  rare  under  a  despotism.  Instances  of  righteous 
and  fearless  performance  of  this  duty  are  not  wanting  how- 
ever. Sung,  a  censor,  sent  in  a  memorial  remonstrating  with 
the  Emperor  Kiaking  upon  his  attachment  to  play  actors  and 
strong  drink,  which  degraded  him  in  the  eyes  of  the  people 
and  disabled  him  from  performing  his  duties.  The  Emperor 
highly  irritated  called  him  to  his  presence  and  on  his  con- 
fessing the  authorship  of  the  memorial  asked  him  what  pun- 
ishment he  deserved.  He  answered  ''quartering"  being  told 
to  select  some  other  he  said  "Let  me  be  beheaded"  and  on  the 
third  command  chose  to  be  strangled.  He  was  ordered  to 
retire  and  the  next  day  the  Emperor  appointed  him  governor 
of  Hi,  thus  removing  him  from  the  capital.  Another  censor, 
during  the  Tang  dynasty,  when  the  emperor  desired  to  in- 


CHINA  233 

spect  the  archives  of  the  historical  office  to  learn  what  had 
been  recorded  concerning  him,  under  the  excuse  that  he 
wanted  to  know  his  faults  so  that  he  might  correct  them, 
answered  "It  is  true  your  Majesty  has  committed  a  number 
of  errors,  and  it  has  been  the  painful  duty  of  our  employment 
to  take  notice  of  them;  a  duty  which  further  obliges  us  to 
inform  posterity  of  the  conversation  which  your  Majesty  has 
this  day  very  improperly  held  with  us."  The  usual  mode  of 
advising  the  Emperor  was  by  a  written  remonstrance  or 
memorial.  Many  of  these  were  inserted  in  the  Peking  Gaz- 
ette for  public  information.  The  Tung-ching  Ss,  or  Court 
of  Transmission,  consisted  of  six  officers,  who  received  me- 
morials from  the  provincial  authorities  and  appeals  from  their 
judgments  by  the  people,  which  they  presented  to  the  Cabinet. 
Attached  to  this  court  was  an  office  for  attending  at  the 
palace  gate,  to  await  the  beating  of  a  drum,  which,  according 
to  ancient  custom,  was  placed  there  that  suitors  by  striking  it 
might  obtain  a  hearing.  This  was  also  the  channel  through 
which  the  people  could  appeal  directly  to  the  Emperor,  and 
instances  occur  where  men  and  women  traveled  from  remote 
provinces  to  present  their  petitions  to  the  "one  man." 

The  Ta-li  S^  or  Court  of  Judicature  and  Revision  had  the 
duty  of  supervising  all  the  criminal  courts  in  the  empire  and 
formed  the  nearest  approach  to  a  Supreme  Court  of  any  in 
the  government.  When  the  crime  involved  life,  this  and  the 
preceding  united  with  the  censors  to  form  one  court,  and  if 
the  judges  were  not  unanimous  in  their  decisions  they  must 
report  their  reasons  to  the  Emperor  to  decide  the  case.  The 
Hanlin  Yuen  or  Imperial  Academy  was  entrusted  "with  the 
duty  of  drawing  up  governmental  documents,  histories  and 
other  works;  its  chief  officers  take  the  lead  of  the  various 
classes,  and  excite  their  exertions  to  advance  in  learning  in 
order  to  prepare  them  for  employments  and  fit  them  for 
attending  upon  the  sovereign."  Its  chief  officers  were  two 
presidents  or  senior  members  who  attended  on  the  Emperor, 
superintended  the  studies  of  graduates  and  furnished  semi- 
annual lists  of  persons  to  be  speakers  at  the  celestial  feasts, 
where  the  essays  of  the  Emperor  were  translated   from  or 


234  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

into  Manchu  and  read  before  him.  Subordinate  to  the  two 
seniors  were  four  grades  of  officers,  five  in  each  grade,  with 
an  unHmited  number  of  senior  graduates,  each  forming  a 
sort  of  college,  whose  duties  were  to  prepare  all  works  pub- 
lished under  governmental  sanction.  Subordinate  to  the  Han- 
lin  Yuen  was  an  office  consisting  of  twenty  two  select  mem- 
bers, who  in  rotation  attended  on  the  Emperor  and  recorded 
his  words  and  actions.  There  was  also  an  additional  office 
for  the  preparation  of  national  histories.  The  members  of 
the  Hanlin,  being  at  the  head  of  the  literary  graduates,  formed 
the  body  from  which  most  important  offices  were  filled. 

There  was  also  the  Kwoh^tsz  Kien  or  National  College  for 
teaching  graduates  of  the  lower  degrees  and  the  Kin  Tien 
or  Imperial  Astronomical  College,  whose  duties  were  defined 
*'to  direct  the  ascertainment  of  times  and  the  movements  of 
the  heavenly  bodies  in  order  to  attain  conformity  with  the 
celestial  periods  and  to  regulate  the  notation  of  time  among 
men;  all  things  relating  to  divination  and  the  selection  of 
days  are  under  its  charge."  The  preparation  of  the  almanac, 
designating  the  lucky  and  unlucky  days  and  other  absurdities 
inserted  in  it,  were  under  their  charge. 

The  various  departments  of  the  general  government  were 
so  arranged  as  to  hold  a  check  on  each  other.  There  were 
two  presidents  over  each  board,  not  merely  to  assist,  but  to 
watch  each  other  and  oversee  the  vice-presidents.  The  presi- 
dent of  one  board  was  sometimes  the  vice-president  of  another 
and  by  means  of  the  censors  brought  under  the  cognizance  of 
several  officers,  whose  mutual  jealousies  and  ambitions  placed 
some  check  on  each  other  and  afforded  some  guarantee  of 
fidehty. 

Having  given  thus  a  general  view  of  the  organization  of 
the  government  at  the  capital  we  proceed  to  a  consideration 
of  the  government  of  the  provinces.  The  highest  officers  in 
the  provinces  were  the  tsung-tuh,  viceroys,  and  the  futai  or 
fuyuen,  governors.  The  tsung-tuh  ruled  over  two  provinces 
or  else  filled  two  high  offices  in  one,  while  the  futai  was  over 
one  province,  either  independent  or  subordinate  to  a  tsung- 
tuh.    The  viceroy  stood  as  the  representative  of  the  Emperor 


CHINA  235 

in  the  territory.  The  futai  filled  a  similar  capacity  but  inferior 
to  the  tsung-tuh  when  there  was  one.  The  departments  of  the 
civil  government  were  five  zis.,  administration,  literary,  gabel, 
commissariat,  and  excise,  the  first  being  also  divided  into  the 
territorial  and  financial  and  the  judicial  branches.  At  the 
head  of  the  first  branch  was  the  pu-ching  sz,  usually  called  the 
treasurer,  over  the  second  the  ngan-chah  sz  or  criminal  judge, 
presided.  These  two  officers  acted  together  in  important 
business  and  the  trial  of  important  cases.  The  literary  de- 
partment was  under  the  direction  of  an  officer,  selected  by  the 
Imperial  Academy  called  a  hioh-ching.  The  gabel  and  com- 
missariat were  usually  supervised  by  officers  called  tao  or 
tao-tai,  sometimes  termed  intendants  of  circuit,  who  had 
other  functions  also.  The  excise  was  under  Kientuh  or  su- 
perintendents. The  collection  of  the  revenue  being  difficult, 
was  mainly  entrusted  to  local  magistrates.  The  military  gov- 
ernment of  a  province  included  both  sea  and  land  forces.  It 
was  under  a  titiih  or  commander-in-chief  of  which  rank  there 
were  sixteen.  In  five  provinces  the  futai  was  commander-in- 
chief  and  in  Kan-suh  there  were  two.  Above  the  tituh^  in 
point  of  rank  but  not  of  power,  were  garrisons  of  Manchu 
Bannermen  under  a  tsiang-kiiin  or  general,  appointed  and  di- 
rected by  the  captains  general  in  Peking.  The  three  officers 
tsungtuh,  futai  and  tsiang  kuin,  if  there  were  one,  formed  a 
supreme  council  and  united  in  deliberating  on  a  measure, 
calling  in  the  subordinate  in  whose  department  it  belonged. 
In  these  courts  civilians  took  precedence  of  military  officers. 
The  authority  of  the  viceroy  extended  to  life  and  death,  to 
making  temporary  appointments  to  fill  vacant  offices  in  the 
province,  to  ordering  troops  to  any  part  of  it  and  taking  such 
measures  as  were  necessary  for  the  security  and  peace  of  the 
province  under  him.  The  futai  also  had  power  of  life  and 
death  and  jurisdiction  of  appeals  in  criminal  cases  and  over- 
saw the  conduct  of  civilians  under  him. 

Next  in  rank  to  the  pu-ching  sz,  treasurer,  and  ngan-chah 
sz,  criminal  judge,  who  always  resided  at  the  provincial  capi- 
tal, were  the  intendants  of  circuit  who  were  located  in  the 
circuits  consisting  of  two  or  three  prefectures  united  for  this 


236  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

purpose.  They  were  deputies  of  the  two  highest  functionaries, 
whom  they  were  appointed  to  assist  and  reheve  in  the  dis- 
charge of  their  duties.  Some  were  appointed  to  supervise 
the  proceedings  of  the  prefects  and  district  magistrates,  others 
stationed  at  important  posts  to  protect  them,  and  those  con- 
nected with  foreign  trade  at  open  ports  had  no  territorial 
jurisdiction.  Below  these  were  the  prefects  or  chief  magis- 
trates of  departments  called  chifu,  chichau,  and  ting  timgchi 
according  as  they  were  placed  over  fu,  chau  or  ting  depart- 
ments. These  officers  received  their  orders  through  the 
intendants,  were  responsible  for  their  full  execution  and  ex- 
pected to  know  all  that  took  place  in  their  jurisdictions. 

Departments  were  divided  into  ting,  chau  and  hien  having 
each  their  separate  officers  who  reported  to  the  head  of  the 
department  over  them.  They  were  called  ting  chi,  chi-chau 
and  chi-hien. 

The  parts  of  districts  called  ss  were  placed  under  the  con- 
trol of  siun-kien,  circuit  restrainers  or  hundreders  who  formed 
the  last  in  the  regular  series  of  descending  rank.  The  pre- 
fects sometimes  had  deputies  directly  under  them,  as  the 
governor  had  his  intendants,  when  the  importance  of  their 
departments  required  it.  Besides  these  there  were  many  other 
deputies  and  assistants  charged  with  particular  duties  in  the 
collection  of  taxes,  oversight  of  the  police,  care  of  water  ways, 
etc.  Besides  the  officers  above  mentioned  there  were  a  great 
number  of  clerks,  registrars  and  secretaries  connected  with 
every  officer  of  high  rank  and  a  multitude  of  petty  subordi- 
nates, with  some  duties  to  perform,  but  largely  kept  to  em- 
phasize the  importance  of  their  superiors.  All  above  the  chi- 
hien  were  allowed  private  secretaries.  The  ngan-chah-sz  had 
jailers  under  their  control,  as  had  also  the  more  important 
prefects. 

The  hioh-ching  or  literary  chancellor,  in  rank  but  not  in 
power,  stood  next  the  governor.  Under  him  were  head  teach- 
ers of  different  degrees  of  authority,  residing  in  the  chief 
towns  of  the  departments  and  districts.  These  had  some 
degree  of  supervision  over  the  studies  of  students  and  the 
colleges  in  the  chief  towns.     The  chancellor  had   exclusive 


CHINA  237 

authority  to  confer  the  lower  Uterary  degrees,  and  he  made 
an  annual  circuit  of  the  province  for  that  purpose,  holding 
examinations  in  the  chief  towns  of  each  department  to  which 
all  students  residing  within  its  limits  could  come. 

The  gabel  or  salt  department  was  under  the  control  of  a 
special  officer  called  a  ''commissioner  for  the  transport  of 
salt."  Above  these  commissioners  were  eight  directors  of  the 
salt  monopoly,  stationed  at  the  depots  in  Chi-li  and  Shang- 
tung,  who  also  performed  other  duties.  The  revenue  de- 
partment was  unusually  large,  owing  to  the  collection  of  so 
much  in  produce  and  merchandise.  The  transportation  of 
grain  along  the  Yangtsz  River  was  under  the  control  of  a 
tsung  Hih,  who  oversaw  the  disposal  and  directed  the  collec- 
tion of  it  in  eight  of  the  provinces  adjacent  to  the  river.  In 
each  of  twelve  provinces  there  was  a  liang-chu  tao  or  commis- 
sioner to  collect  grain  and  in  the  other  six  the  duty  was 
performed  by  the  pii-ching  sz.  The  supervision  of  the  subordi- 
nates of  this  department  rested  with  the  prefects  and  district 
magistrates.  The  number  of  provincial  officers  of  the  differ- 
ent grades  above  referred  to  were  given  as  follows : 

8  Governors  General  or  viceroys,   six  governing  two 
provinces  each. 

15  Governors. 

19  Commissioners  of  Finance. 

18  Commissioners  of  Justice. 

4  Directors  of  Salt  Gabel. 

9  Collectors. 

13  Commissioners  of  Grain. 

64  Intendants  of  Circuit. 

182  Prefects. 

68  Prefects  of  Inferior  Departments. 

18  Independent  Subprefects. 

180  Dependent  Subprefects. 

139  Deputy  Subprefects. 

141  District  Magistrates  of  the  Fifth  Class. 

1232  District  Magistrates  of  the  Seventh  Class. ^ 
^The  Middle  Kingdom. 


238  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  military  section  of  the  provincial  government  was 
under  a  ti-tuh  or  general  who  resided  at  a  central  post  and  in 
conjunction  with  the  viceroy  and  governor  directed  the  move- 
ment of  troops.  The  native  troops  in  each  province  were  dis- 
tinct from  the  Manchu  and  were  divided  somewhat  after  the 
plan  of  the  ancient  Roman  legion,  cohort,  maniple  and  cen- 
tury, over  each  of  which  were  appropriate  officers.  The  gov- 
ernor, major  general,  and  Banner  commandant  had  commands 
independent  of  each  other.  Naval  officers  had  the  same 
names  as  those  in  the  army  and  changes  and  promotions  were 
made  from  one  arm  of  the  service  to  the  other.  The  general 
officers  had  power  to  send  special  messengers  invested  with 
full  powers  to  every  part  of  their  jurisdiction. 

The  Emperor  sent  commissioners,  called  Kiu-chai,  to  all 
parts  of  the  empire,  ostensibly  on  particular  business,  but  re- 
quired to  take  general  observations  of  what  was  going  on. 
In  considering  the  extent  of  the  jurisdiction  and  vast  power 
reposed  in  these  various  officers,  it  must  be  borne  in  mind  that 
each  viceroy  had  under  him  more  people  than  are  to  be  found 
in  any  but  the  greatest  countries  of  Europe,  that  he  stood  as 
the  representative  of  the  Emperor  and  of  the  supreme  legis- 
lative, executive,  and  judicial  power,  and  that  he  constantly 
exercised,  in  person  and  through  his  subordinates,  more  or 
less  of  all  these  functions.  The  Emperor,  with  his  great  army 
of  assistants  at  Peking,  watched  over  and  directed  not  only 
the  affairs  of  the  eighteen  home  provinces,  but  also  the  outer 
dependencies.  It  is  exceedingly  difficult  for  one,  accustomed 
only  to  study  western  governments  and  laws,  to  gain  a  clear 
conception  of  this  vast  governmental  system,  which  owed 
none  of  its  principles,  forms  or  policies  to  the  suggestion  of 
other  nations.  The  government  like  the  people  was  indigenous 
and  to  be  understood  must  be  viewed  in  connection  with  its 
environments. 

No  officer  was  allowed  to  marry  in  the  jurisdiction  under 
him  nor  to  own  land  in  it,  nor  have  a  near  relative  holding 
office  under  him;  and  one  was  seldom  continued  in  the  same 
station  for  more  than  three  years.  Manchus  and  Chinese  were 
mingled  together  and  were  expected  to  watch  and  mutually 


CHINA  239 

check  each  other.  Members  of  the  imperial  clan  were  required 
to  attend  the  meetings  of  the  boards  at  the  capital  and  ob- 
serve and  report  what  they  deemed  amiss  to  the  Emperor.  A 
triennial  catalogue  of  merits  and  demerits  of  all  officials  in 
the  empire  was  made  out  by  the  Board  of  Civil  Office  and 
submitted  to  the  Emperor.  This  catalogue  was  made  up  from 
reports,  made  by  all  provincial  officers  on  the  conduct  of  those 
under  them,  forwarded  by  the  governors.  The  points  were 
arranged  under  six  heads,  diligence,  efficiency,  superficiality, 
talents,  superannuated  and  deceased.  On  this  basis  the  offi- 
cers were  advanced  or  degraded.  Officers  were  required  to 
accuse  themselves,  when  guilty  of  crime  committed  by  either 
themselves  or  their  subordinates,  and  request  punishment. 
The  names  and  standing  of  all  officers  were  published  quar- 
terly by  permission  of  the  government  in  the  Red  Book,  in 
four  twelvemo  volumes,  and  officers  of  the  army  and  Banner- 
men  in  two  others.  This  publication  was  begun  about  1580 
and  gives  the  name,  native  province,  race,  title  and  salary  of 
the  officers.  The  record  of  most  officials  is  one  of  ups  and 
downs,  very  few  being  able  to  steadily  advance.  Except  the 
preferences  given  to  the  imperial  clan,  Chinese  officials  came 
up  from  the  great  multitude.  No  matter  how  humble  his 
birth,  any  subject  was  eligible  to  the  highest  office  under  the 
emperor.  Theoretically  education  was  the  test  of  qualifica- 
tion. Practically  the  favor  of  the  appointing  power  was  of 
first  importance  and  personal  influence  often  outweighed  merit. 
The  orders  of  the  court  were  usually  transmitted  in  manu- 
script. General  proclamations  were  printed  on  yellow  paper 
in  the  Manchu  and  Chinese  languages  with  a  border  of 
dragons.  Orders  and  regulations  issued  by  governors  and 
other  principal  officers  to  the  people  of  the  provinces  were 
also  published.  Standing  laws  and  local  regulations  were 
often  carved  on  tablets  of  black  marble  and  placed  in  the 
streets  where  all  could  read  them.  Commands  of  the  gfov- 
ernment  were  usually  printed  in  large  characters  and  copies 
were  posted  at  the  doors  of  the  offices  and  in  public  places  in 
the  streets,  with  the  seal  of  the  officer  authenticating  them. 
Important  edicts  were  also  often  printed  in  pamphlet  form. 


240  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Persons  eligible  to  office  were  divided  into  nine  Titerary  ranks, 
the  lowest  including  village  magistrates,  deputy  treasurers, 
jailers,  etc.  Policemen,  local  interpreters,  clerks  and  attend- 
ants were  not  regarded  as  of  any  rank  and  were  mostly  resi- 
dents of  the  locality  where  employed.  Titular  rank  was  sold 
by  the  government,  but  this  did  not  open  the  road  to  official 
position,  though  offices  were  purchased  corruptly  and  in- 
stances occurred  where  offices  were  sold  by  the  government. 
The  principal  advantage  of  the  honorary  title  was  that  it 
saved  the  possessor  from  the  bamboo,  where  others  would 
suffer. 

Besides  the  officials  holding  by  appointment  under  the  Em- 
peror, there  were  village  headmen,  chosen  by  the  people  them- 
selves, who  had  more  or  less  important  duties  to  perform 
according  to  circumstances.  They  decided  petty  disputes, 
supervised  local  police,  regulated  festivals,  markets  and 
streets,  collected  taxes,  etc.  They  were  under  surveillance 
of  their  supervisors  and  an  appeal  lay  from  the  headmen  to 
the  district  magistrate.  Meetings  of  the  headmen  of  many 
villages  to  consult  on  matters  of  mutual  interest  were  some- 
times held  and  they  held  something  of  a  check,  as  representa- 
tives of  the  people,  on  the  oppressions  and  extortions  of  the 
higher  officials  and  their  menial  dependents.  The  existence 
of  clans,  which  is  most  marked  in  the  southern  provinces,  is 
a  source  of  much  disorder  and  crime.  There  are  about  four 
hundred  clans  in  the  empire,  many  of  which  are  scattered 
throughout  different  parts,  thus  in  effect  greatly  multiplying 
the  number.  The  clans  are  most  active  and  turbulent  in  the 
southern  provinces,  especially  Kwang  tung  and  Fukien.  By 
uniting  to  shield  members  guilty  of  crime,  great  difficulties 
are  often  interposed  to  the  administration  of  justice.  False 
witnesses  and  sometimes  hired  substitutes,  confessing  crime 
to  shield  the  guilty,  are  produced  and  paid  by  the  clan.  In 
some  places  the  clan  becomes  little  more  than  a  nest  of  bandits 
and  even  develops  into  the  terrible  Kouan  Kouen  of  whom 
the  Abb  Hue  says,  ''To  give  and  receive  wounds  with  com- 
posure; to  kill  others  with  the  most  perfect  coolness  and  to 
have  no  fear  for  yourself,  this  is  the  sublime  ideal  of  the 


CHINA  241 

Kouan  Kouen."  In  the  cities  the  householders  on  each  street 
are  required  to  unite  in  poHcing  the  street  and  maintaining 
order,  and  for  this  purpose  they  select  a  headman  who  has 
supervision.  The  citizens  also  form  voluntary  guilds  to  fur- 
ther mutual  interests,  each  having  its  assembly  hall,  where 
they  assemble  for  about  the  same  purposes  as  do  European 
guilds.  Popular  assemblies  are  sometimes  held  on  a  more 
comprehensive  scale  and  in  Canton  there  is  a  building,  called 
the  Free  Discussion  Hall,  where  political  matters  are  openly 
discussed  and  the  gatherings  often  wield  great  influence. 
Secret  societies,  some  of  them  ramifying  throughout  a  large 
part  of  the  empire,  are  numerous,  though  the  policy  of  the 
government  was  to  suppress  them.  City  charters  appear  to 
have  been  a  thing  unknown  and  the  j>eople  of  cities  were 
subject  to  substantially  the  same  governmental  system  that 
prevailed  throughout  the  empire.  China  is  peculiarly  free 
from  class  distinctions.  There  is  no  hereditary  aristocracy 
corresponding  to  that  of  Europe,  the  clan  of  the  Emperor 
and  descendants  of  Confucius  alone  receiving  substantial 
recognition. 

Caste  in  the  sense  in  which  it  exists  in  India  is  unknown. 
There  are  prejudices  against  members  of  certain  aboriginal 
tribes  in  the  interior  and  boat  people  on  the  coast.  Aliens 
slaves,  criminals,  executioners,  police  runners,  actors,  jug- 
glers, beggars,  vagrants  and  vile  persons,  were  not  eligible 
for  the  literary  examinations,  nor  their  descendants  until  for 
three  generations  they  had  followed  some  useful  employment. 
The  democratic  part  of  the  system  was  in  the  village  organi- 
zation, which  was  thoroughly  so.  All  citizens  were  electors 
and  eligible  to  oflice.  The  village  collectively  was  responsible 
for  the  taxes  and  the  headmen,  usually  the  elders,  were 
generally  of  high  character  and  worthy  of  the  confidence  re- 
posed in  them.  These  village  organizations  included  con- 
siderable numbers  of  people,  in  some  instances  several  thou- 
sands. In  the  election  of  headmen,  the  people  divided  by 
clans,  rather  than  parties  representing  different  principles, 
and  most  of  the  wrongs  attributed  to  these  local  governments 
are  chargeable  to  clan  enmity. 


242  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Slavery  exists  in  China,  but  only  to  a  very  limited  degree 
as  to  males,  the  numbers  of  whom  are  so  few  as  to  be  hardly 
appreciable.  Women  are  sold,  but  usually  for  concubines. 
Polygamy  is  allowed,  but  not  much  practiced  except  by  the 
rich.  The  chief  fundamental  defect  in  the  organization  of 
Chinese  society  unquestionably  is  the  low  estimation  in  which 
women  are  held  and  their  oppression  by  the  males.  The  wife 
is  the  slave  of  her  husband,  with  whom  she  is  not  permitted  to 
eat,  or  attend  public  worship.  The  birth  of  a  son  is  followed 
by  great  rejoicing  but  the  birth  of  a  daughter  is  considered  a 
calamity.  The  girl  is  the  servant  of  her  brothers  as  well  as 
her  parents,  and  until  recent  times  in  obedience  to  the  merci- 
less demands  of  fashion,  was  required  at  an  early  age,  to 
endure  the  barbarous  process  of  foot  binding,  by  which  she 
was  rendered  a  cripple  for  life.  This  seems  to  have  been 
even  more  the  work  of  the  women  than  of  the  men,  the 
mothers  like  those  of  western  lands  prizing  above  all  things 
the  appearance  which  fashion  demanded.  The  respect  for 
parents  and  for  age,  so  strongly  inculcated  in  all  the  teachings, 
tends  in  some  measure  to  alleviate  the  condition  of  women  in 
the  closing  years  of  life.  The  fact,  however,  is  abundantly 
established  that  the  Chinese,  as  a  nation,  deny  absolutely  the 
equality  of  the  sexes  and  remain  blind  to  the  blighting  influ- 
ence on  society,  and  on  each  succeeding  generation,  which  the 
degradation  and  ill  treatment  of  mothers  have.  Though  Chi- 
nese philosophers  have  perceived  and  taught  the  value  of  home 
instruction  and  of  the  mother's  influence  on  her  offspring,  they 
have  utterly  failed  to  carry  the  lesson  to  its  logical  conclusion 
and  enjoin  such  care,  education  and  considerate  treatment  of 
the  mother  as  will  enable  her  to  properly  discharge  these 
duties.  Herein  lies  the  greatest  defect  in  the  social  system  of 
the  empire. 

A  general  survey  of  the  workings  of  the  Chinese  govern- 
ment will  show  that  it  drew  far  less  from  the  people  by  tax- 
ation than  any  other  great  government,  population  considered, 
and  the  number  of  oflicials  employed  was  very  much  less. 
The  complaints  of  the  people  were  not  so  much  against  regu- 
lar taxation  as  the  extortion  of  petty  oflicials  and  hangers  on 


CHINA  243 

of  the  courts.  It  was  the  corruption  and  extortions  of  offi- 
cials high  and  low  that  bore  heavily  on  those  who  found  need 
of  resorting  to  governmental  protection  or  were  called  on  to 
answer  for  their  doings. 

China  is  the  least  military  of  all  the  great  governments,  ex- 
cept the  United  States  of  America.  Its  standing  army  in- 
cludes less  than  one  million  men  of  whom  very  many  are  but 
nominal  soldiers.  This  is  less  than  one  out  of  four  hundred 
of  its  population.  Any  first  class  European  power,  Great 
Britain  excepted,  can  muster  a  larger  force  than  this  of 
trained  soldiers,  though  not  all  in  actual  service.  Chinese 
soldiers  are  generally  regarded  with  contempt  by  Europeans 
and  while,  as  individuals,  the  Chinese  frequently  exhibit  as 
much  physical  courage  as  Europeans,  their  character,  habits 
and  traditions  are  essentially  unmilitary. 

In  its  government  we  find  that  the  primary  structure  was 
democratic  in  character,  resembling  the  tribal  organizations 
of  primitive  people,  which  usually  accord  sojne  degree  of  dis- 
tinction and  respect  to  the  elders.  At  the  head  of  the  vast 
official  machine  was  the  Emperor,  theoretically  the  great 
patriarch  of  the  whole,  vested  with  full  power,  which  he  was 
expected  to  exercise  as  a  father,  according  to  established  prin- 
ciples and  customs  and  for  the  good  of  his  immense  family. 
The  theory  of  the  government  did  not  admit  of  anything  like 
a  clear  separation  of  it  into  legislative,  executive  and  judicial 
departments,  nevertheless  these  functions  were  in  practice 
separately  exercised  to  a  considereble  extent.  The  principles 
declared  in  the  classical  books  require  that  the.  government  be 
rather  one  of  laws  than  of  the  arbitrary  will  of  men,  and  the 
Book  of  Rites  indicates  the  relations  of  the  various  grades  of 
officials  to  each  other  and  to  the  people.  However  arbitrarily 
they  may  have  exercised  their  powers  in  practice,  the  army 
of  officials  who  administered  the  government  had  no  com- 
mission to  rule  according  to  their  pleasure.  Their  powers 
and  duties  were  well  marked  out  and  a  well  devised  and  con- 
stant system  of  surveillance  and  espionage  to  keep  them  to 
their  duties  was  maintained. 

China  has  long  had  its  code  of  written  laws  termed  the 


244  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

penal  code,  though  it  relates  to  what  are  called  civil  cases  with 
us  as  well  as  to  criminal  ones.  An  extended  summary  of  this 
code  as  it  existed  a  century  ago,  before  western  influences  had 
been  sufficient  to  produce  any  material  effect  on  Chinese  senti- 
ments, will  be  found  in  the  Appendix. 

Steamboats,  railroads,  and  telegraphs  have  reduced  the  dis- 
tance between  China  and  the  west;  other  western  inventions 
and  scientific  teachings  have  introduced  new  ideas  into  the 
ancient  realm;  battleships  and  great  guns  have  demonstrated 
the  destructive  forces  of  the  "foreign  devils,"  and  China  can 
no  longer  be  a  world  to  itself.  The  new  learning  of  the  west 
has  been  acquired  by  many  Chinese  scholars,  and  books  and 
periodicals  of  all  kinds  have  disseminated  it  throughout  the 
empire.  Though  Chinese  statesmen  and  merchants  came  in 
contact  with  foreign  people  ever  since  the  opening  of  trade 
between  Europe  and  India  and  China  but  little  effect  on  the 
multitude  was  produced  until  very  recent  times.  Kwang-su, 
an  infant,  ascended  the  throne  in  January,  1875  with  the 
dowager  empresses  Tsz'e  Hsi  and  Tsz'e  An  as  guardians. 
Tsz'e  An  died  in  1881  and  from  that  time  till  1898  the  sover- 
eign power  was  wielded  by  Tsz'e  Hsi.  Kwang-su  then  as- 
sumed authority  for  a  brief  period  but  was  deposed  by  the 
dowager  who  resumed  authority.  The  war  with  Japan,  the 
acquisition  of  the  Philippine  Islands  by  the  United  States,  the 
construction  of  the  Siberian  railway  by  Russia,  the  boxer  up- 
rising in  1900  and  the  intervention  of  the  foreign  powers  and 
the  war  between  Japan  and  Russia,  combined  with  increasing 
knowledge  of  western  arts,  inventions  and  ideas  to  produce 
a  public  sentiment  among  the  educated  classes  in  favor  of 
sweeping  reforms  in  governmental  methods.  In  1905  an  Im- 
perial Commission  to  study  the  administrative  systems  of 
other  countries  was  appointed  with  a  view  to  the  possible 
establishment  of  representative  government  in  China.  This 
Commission  visited  Japan,  America  and  Europe.  On  Sep- 
tember I,  1906  an  edict  for  the  future  establishment  of  a 
parliamentary  form  of  government  at  no  fixed  date  was 
promulgated.  August  27,  1908  a  decree  issued  in  the  name 
of  Kwang-su  announced  the  convocation  of  a  parliament  in 


CHINA  245 

the  ninth  year  from  that  date.  Reform  of  the  educational 
system  to  inchide  modern  sciences  as  well  as  the  Chinese 
classics  began  in  1902.  Kwang-su  died  in  November,  1908 
and  his  death  was  followed  by  that  of  the  dowager  empress 
on  the  fifteenth  of  that  month.  Pu-Yi,  the  infant  nephew  of 
Kwang-su,  succeeded  to  the  throne.  On  October  14,  1909, 
Provincial  Assemblies  elected  in  the  provinces  met.  In  Feb- 
ruary, 1910  a  decree  approving  schemes  of  the  Commission 
for  constitutional  reforms  with  local  representative  govern- 
ments in  the  prefectures  and  departments  and  reforms  of  the 
judiciary  was  promulgated.  The  appointment  in  May  191 1 
of  an  Executive  Council  composed  of  eight  royal  princes, 
four  Manchus  and  only  five  Chinese,  and  the  assertion  by  the 
regent  that  "the  right  to  name  ofBcials  belongs  to  the  Emperor 
alone"  and  the  manifestation  of  reactionary  tendencies  by  the 
court,  precipitated  a  revolution  which  resulted  in  the  abdica- 
tion of  the  little  Pu-Yi  and  the  dowager  Empress  on  Febru- 
ary 12,  1912  and  the  establishment  of  the  Republic  of  China. 
While  the  change  from  the  theory  of  an  absolute  paternal 
despotism  to  a  republic  seems  so  very  great,  China  was  not 
wholly  unprepared  for  it.  The  indispensable  prerequisite  of 
a  written  language  read  and  comprehended  by  a  large  part 
of  the  people,  coupled  with  general  education  in  the  principles 
of  government  as  declared  in  the  classical  books  and  long 
familiarity  with  local  self-government  in  the  villages  and  com- 
munities, and  the  meetings  of  the  head  men  of  a  number  of 
villages  for  consultation  and  concerted  action  had  prepared 
the  people  in  some  measure  for  republican  institutions. 

Nothing  is  more  common  than  to  regard  with  contempt 
that  which  is  not  understood.  Europeans  and  Americans  gen- 
erally look  upon  Chinese  civilization  as  containing  nothing 
worthy  of  adoption  or  even  of  serious  consideration.  The 
Chinese  are  now  manifesting  a  willingness  to  learn  from  the 
western  barbarians,  whom  they  so  long  despised. 

The  prominent,  glaring  faults  of  the  Chinese  are  their 
treatment  of  women,  slavery,  polygamy,  binding  the  feet, 
torture  to  extort  confessions  of  crime,  and  cruel  punishments. 
These  are  so  repugnant  to  Europeans  that  it  is  often  assumed 


246  EVO'LUTION  OF  GOVERNMENTS  AND  LAWS 

that  not  great  virtues  can  be  associated  with  conduct  so 
vicious. 

Europe  viewed  from  the  standpoint  of  China,  exhibits  many 
comparatively  petty  states,  constantly  burdened  with  the  sup- 
port of  great  armies  and  often  warring  with  each  other,  speak- 
ing different  languages  as  do  the  inferior  tribes  within  the 
Chinese  empire.  They  are  shocked  at  the  disrespect  exhibited 
toward  parents  in  America,  even  more  than  in  Europe;  at 
the  want  of  respect  for  one  another  indicated  by  the  absence 
of  ceremonious  greetings,  at  the  absurd  fashions  in  clothing, 
the  absurd  burdens  of  woolens  and  linens  in  summer  worn  by 
the  men,  and  the  indecent  and  harmful  exposure  of  their  per- 
sons by  the  women  at  great  functions  in  winter ;  at  the  multi- 
tudes of  idle  rich  and  idle  poor  found  everywhere;  at  the  in- 
justice and  bad  policy  of  laws  which  fix  the  fines  of  rich  and 
poor  at  the  same  sum  of  money ;  at  the  want  of  discrimination 
in  punishments  and  the  actual  exemption  of  the  nobility  in  Eu- 
rope and  the  very  rich  in  America  from  accountability  for  their 
conduct,  and  many  other  European  and  American  peculiarities. 

To  the  American  or  European  who  considers  the  Chinese 
Penal  Code,  probably  the  first  matter  that  will  challenge  his 
attention  is  the  want  of  a  civil  code.  Europeans  and  Ameri- 
cans from  the  earliest  historical  times  have  classified  their 
causes  in  court  as  civil  and  criminal,  and  this  division  is  re- 
garded as  natural  and  indispensable.  Is  it  really  either  natural 
or  indispensable?  The  fundamental  idea  of  the  Chinese  was 
that  the  Emperor  occupied  the  relation  of  a  father  to  all  the 
people;  that  the  duty  rested  on  him  to  restrain  all  his  multi- 
tude of  children  from  doing  wrong,  and  also  to  compel  them 
to  do  right.  How  should  this  be  done?  As  a  father  would 
enforce  obedience  and  right  conduct  by  his  children^  For 
petty  offences  and  omissions  of  duty  a  mild  whipping:  for 
those  more  serious  more  strokes.  When  whipping  appeared 
inadequate,  banishment,  and  for  the  most  heinous  crimes, 
death.  The  Chinese  deem  punishment  due  to  him  who  de- 
frauds his  neighbor  as  well  as  to  him  who  steals  from  him; 
to  him  who  unlawfully  detains  another's  property  as  well  as 
to  him  who  stealthily  takes  it.    To  fail  to  pay  a  debt  or  per- 


CHINA  247 

form  a  contract  or  duty  is  a  misdeed  to  be  corrected  with  the 
bamboo.  Misdeeds  are  graded  and  classified  in  the  Penal 
Code  of  China  far  more  logically  and  naturally  than  in  Europe 
or  America.  The  turpitude  of  the  misdeed  depends  on  the 
value  of  the  property  of  another  which  has  been  unlawfully 
taken,  retained  or  misappropriated;  the  nature  of  the  injury 
to  the  person;  the  intent  of  the  wrongdoer,  and  the  relation- 
ship of  the  parties.  In  Europe  and  America  an  arbitrary  line 
It  drawn  between  crimes  and  civil  wrongs.  Many  frauds  and 
misdeeds  of  the  greatest  magnitude  are  not  classed  as  crimes, 
and  some  really  meritorious  acts  are  punished.  Larceny  and 
embezzlement,  which,  in  the  nature  of  things  have  many 
grades  of  moral  turpitude,  are  ordinarily  divided  arbitrarily 
into  two  classes  based  on  value  or  kind  of  property.  The 
Chinese  make  a  much  more  logical  classification  and  punish 
petty  pilfering  with  but  a  few  blows,  and  larceny  of  a  large 
sum  with  death.  To  steal  food  to  satisfy  hunger  is  but  a 
slight  fault,  to  deliberately  take  a  large  sum  of  money  or 
property  of  great  value  from  another  exhibits  moral  turpitude 
and  is  punished  accordingly.  It  is  regarded  as  a  much  more 
serious  offense  for  a  son  to  strike  his  father  or  mother  than 
a  stranger.  It  is  a  less  offense  for  a  member  of  a  family  to 
appropriate  a  part  of  the  property  of  another  member  of  it  to 
his  use  than  to  take  from  a  stranger.  In  dealing  with  prin- 
cipals and  accessories  in  crime,  the  one  who  plans  and  directs 
is  regarded  as  the  principal,  whether  he  actually  takes  part  in 
the  perpetration  of  the  offense  or  not.  This  also  is  more  logi- 
cal than  the  rules  of  the  common  law  of  England  and  the 
United  States. 

In  the  infliction  of  punishment  regard  is  had  to  the  ability 
of  the  culprit  to  endure  it.  Both  the  old  and  the  young  are 
treated  more  leniently  than  the  strong  mature  men.  Women 
are  allowed  special  consideration  in  this  particular  and  retain 
the  upper  garment  while  a  man  is  required  to  strip.  Where 
commutation  is  allowed  in  lieu  of  the  bamboo,  the  amount  of 
the  payment  depends  on  the  ability  of  the  culprit  to  pay,  and 
the  rich  and  powerful  must  pay  ten  tiYnes  as  much  as  the 
poor  and  humble.     When  it  is  considered  that  in  the  west  the 


248  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

rich  nearly  always  escape,  and  when  convicted  and  actually 
punished  are  treated  with  far  more  consideration  than  the 
poor,  the  superiority  of  the  Chinese  code  in  this  particular 
appears  very  marked. 

While  the  laws  with  reference  to  marriage  and  divorce  dj 
not  commend  themselves  to  the  Western  mind,  in  one  par- 
ticular the  divorce  law  is  superior  to  ours.  It  recognizes  mis- 
conduct as  a  ground  for  a  divorce,  but  it  also  recognizes  good 
conduct  as  a  defence.  Clearly,  good  conduct  should  be 
weighed  as  well  as  bad.  Western  people  are  disposed  to 
ridicule  Chinese  regulations  with  reference  to  mourning,  yet 
these  accord  perfectly  with  the  central  idea  of  paternal  author- 
ity on  which  both  the  governmental  and  domestic  systems 
were  based.  Doubtless  the  profound  respect  for  parents  man- 
ifested by  the  Chinese  is  largely  due  to  the  law  relating  to 
mourning,  which  makes  the  loss  of  father  or  mother  a  calam- 
ity, not  merely  in  and  of  itself,  but  also  by  reason  of  the  legal 
consequences  which  follow.  In  the  West  the  heir  of  a  great 
estate  is  far  too  often  forgetful  of  his  loss  and  over  conscious 
of  his  gain. 

In  no  other  country  is  industry  and  thrift  so  general,  and 
nowhere  else  is  there  so  small  a  percentage  of  idlers  living 
on  the  industry  of  others.  This  also  is  due  in  some  measure 
at  least  to  the  policy  of  the  law.  Speculators  are  not  allowed 
to  hold  great  tracts  of  land  without  use.  The  owner  must 
make  his  land  productive  and  the  village  authorities  must  see 
that  he  does  so. 

Acts  of  Parliament  covering  limited  fields  and  the  recog- 
nized methods  of  carrying  on  public  affairs  constitute  the  so- 
called  British  constitution.  In  China  the  classical  books  de- 
fined the  relations  of  the  people  and  their  rulers,  and  the  offi- 
cial system  through  which  the  people  were  governed,  with  its 
explicit  rules  and  the  elaborate  penal  code,  constituted  their 
constitution.  It  is  true  that  they  had  not  the  theoretical  sepa- 
ration of  executive,  legislative  and  judicial  departments,  but 
on  the  other  hand  they  had  a  more  complete  system  of  chang- 
ing officials  from  pl^ce  to  place  and  having  each  watch  and 
report  on  the  conduct  of  others  than  can  be  found  in  any 
other  country. 


CHINA  249 

Though  classed  as  a  despotism  by  Europeans,  China  had 
encouraged  learning  through  many  centuries,  while  European 
kings  discouraged  it.  In  theory  education  and  merit  were 
the  sole  means  of  gaining  official  station  and  of  retaining  it 
when  once  acquired.  Knowledge  of  the  laws  was  exacted  of 
all  officials.  Those  who  wielded  the  powers  of  government 
were  not  above  the  law,  but  themselves  liable  to  punishment 
for  its  violation.  A  Western  judge  is  not  liable  to  punishment 
for  a  wrong  judgment  but  in  China  all  the  court  officials  as 
well  as  the  judge  were  subject  to  punishment  for  disregard- 
ing the  law. 

Until  very  recent  times  the  rulers  of  Europe  refused  to  give 
information  to  their  subjects  of  the  doings  at  their  courts. 
The  Emperors  of  China  have  long  made  public  their  official 
acts,  and  through  the  Peking  Gazette  all  might  keep  informed 
of  the  acts  and  orders  of  the  government. 

The  people  of  China  have  from  a  very  early  day  enjoyed, 
not  only  a  large  measure  of  liberty  of  individual  action,  but 
of  association  and  combination  as  well.  The  Empire  includes 
all  varieties  of  climate,  soil,  and  productions.  Perpetual 
w^inter  reigns  on  the  peaks  of  the  Thian  Shan  and  Kuen  Lun, 
while  the  most  southern  provinces  extend  into  the  tropics. 
The  people  have  never  relied  on  any  other  country  for  the 
necessaries  or  even  luxuries  of  life.  Foreign  commerce  has 
always  been  limited,  yet  the  internal  commerce  of  China  is 
and  long  has  been  second  to  that  of  no  country  in  the  world. 
It  has  never  been  the  policy  of  the  rulers  of  China  to  inter- 
fere with  the  useful  activities  of  the  people,  nor  has  the  gov- 
ernment for  any  long  period  attempted  to  supervise  or  direct 
them.  Industry,  thrift  and  the  performance  of  obligations 
have  been  enjoined  and  enforced.  The  average  Chinaman, 
whether  at  home  or  abroad,  looks  to  China  as  the  only  really 
civilized  country  in  the  world,  and  the  best  place  on  Earth  in 
which  to  live.    Is  it  quite  certain  that  he  is  altogether  wrong? 

It  is  easy  to  point  out  moral  blemishes  in  the  Chinese.  It 
is  equally  easy  to  see  them  in  Europeans  and  Americans.  It 
is  not  easy  to  judge  justly  of  the  relative  merits  and  demerits 
of  the  different  people  or  of  their  institutions  and  laws. 


250  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

China  combined  democratic  local  self-government  under 
written  laws  with  an  autocratic  central  power  acting  through 
a  most  carefully  devised  arrangement  of  bureaus  and  depart- 
ments designed  to  afford  mutual  checks  on  each  other.  Under 
this  system  one-fourth  of  all  the  people  on  the  globe  lived. 
They  have  known  less  of  the  horrors  of  war  than  any  other 
equal  number  of  people  on  Earth  no  matter  how  selected. 
They  are  subject  to  less  annoying  restrictions  in  the  transac- 
tion of  their  daily  business  than  the  people  of  most  states  of 
Europe.  The  morality  inculcated  by  their  classical  books  and 
the  Buddhist  teachers  is  as  pure  and  lofty  as  that  found  in 
the  teachings  followed  by  the  people  of  the  West. 

As  the  study  of  a  foreign  language  is  one  of  the  best  means 
for  learning  ones  mother  tongue,  so  the  study  of  the  code  of 
laws  most  dissimilar  to  that  of  our  own  country  is  an  excellent 
method  of  finding  out  the  defects  and  absurdities  of  the  sys- 
tem to  which  the  student  is  accustomed.  The  extreme  dis- 
similarity of  the  institutions  of  China  and  those  of  Europe 
and  America  give  especial  value  to  the  study  of  its  ancient 
moral  teachings,  laws,  customs  and  government. 

Authorities 

Williams:    The  Middle  Kingdom. 
Langdon:     China  and  the  Chinese. 
Wilson :     China. 
Gray :     China. 

Hue:     Travels  in  the  Chinese  Empire. 
Murray:     Travels  of  Marco  Polo. 
Encyclopaedia  Britannica. 
Staunton:     Penal  Code  of  China. 


CHAPTER  XI 

Japan 

So  far  as  the  history  of  Japan  has  come  down  to  us  it  is 
the  history  of  a  single  dynasty.  No  other  country  is  now 
ruled  by  a  family  so  long  in  power  or  to  speak  more  accurately, 
theoretically  in  power.  Starting  with  Jimmu  Tenno,  whose 
reign  commenced  about  660  B.C.,  the  mikados  have  traced 
their  descent  from  him  and  have  been  recognized  as  the  sover- 
eigns of  the  empire.  That  there  were  people  on  the  island 
prior  to  his  time  and  that  many  events  of  great  historic  in- 
terest transpired  long  before,  does  not  admit  of  doubt,  but, 
as  the  Japanese  had  no  written  records  till  the  sixth  century 
of  our  era,  even  the  history  of  the  early  rulers  is  founded  on 
tradition  and  starts  with  the  supernatural  and  mythical.  Ac- 
cording to  the  legend,  Ningo-no-Mikoto,  grandson  of  the  sun 
goddess  Ameterasu-o-mi-Kami,  settled  in  the  south  part  of 
the  island  of  Kiushiu.  His  son,  Jimmu  Tenno,  proceeded 
northward  and  landed  on  the  principal  island  from  the  Bay  of 
Ozaka.  Thence  he  advanced  into  the  country,  subduing  the 
neighboring  provinces,  and  established  his  residence  near  the 
town  of  Nara  in  the  year  660  B.C.  It  is  surmized  that  the 
Ainos,  now  found  only  in  the  extreme  north  of  the  empire, 
were  the  aborigines,  and  that  Jimmu  Tenno  was  the  leader 
of  a  superior  race,  which  invaded  the  country  from  the  south. 
The  character  of  the  inhabitants  of  the  island  at  the  date  of 
his  advent  must,  however,  remain  a  matter  of  conjecture 
rather  than  of  established  fact  until  some  record  not  yet  made 
public  is  discovered. 

The  fundamental  theory  of  the  government,  promulgated 
and  maintained  through  all  the  generations,  is  that  of  a  ruler 
divinely  descended  and  commissioned  to  govern  the  people 
according  to  his  sovereign  will.  Jimmu  Tenno  is  credited  with 
introducing  the  culture  of  cereals,  hemp,  garlic  and  ginger. 

25;  I 


252  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

His  early  successors  would  seem  to  have  had  exceptionally 
long  reigns,  as  the  tenth  Mikado,  Sujin  Tenno,  ruled  from 
97  to  30  B.C.     This  would  allow  more  than  an  average  of 
sixty  years  to  each  mikado.    Though  some  progress  was  made 
in  agriculture  and  the  authority  of  the  Mikado  was  so  extended 
as  to  extort  tribute  from  Corea  in  32  B.C.,  a  low  state  of 
civilization  may  be  inferred  from  the  existence  of  a  custom  by 
which  on  the  death  of  the  Mikado  or  one  of  his  near  relatives 
his  servants  were  buried  alive  with  him.     A  law  prohibiting 
this  custom  was  promulgated  in  the  year  A.D.  2.     Such  a 
custom  implies  the  prevalence  of  the  most  unmitigated  slavery 
and  abject  submission  to  despotic  power.     It  is  evident  that 
the  dominion  of  the  early  rulers  did  not  extend  over  all  the 
islands,  for  not  until  the  reign  of  Kuko  Tenno,  A.D.  71  to 
130,  was  the  great  Kuwanto  subdued,  and  an  invasion  from 
Kiushiu  caused  the  subjugation  of  that  island,  which,  though 
the  landing  place  of  the  father  of  the  first  Mikado,  would  seem 
never    to    have    been    subject    to    his    immediate    successors. 
Though  Japanese  writers  seem  to  accept  the  accounts  of  the 
administrations  of  the  early  rulers  as  historic  facts,  there  are 
so  many  elements  of  improbability  connected  with  them  that 
they  hardly  afford  a  safe  basis  for  deductions.    Little  is  known 
of  the  number  of  people  on  the  islands  or  their  condition  prior 
to  the  introduction  of  letters.     It  seems  reasonably  certain 
however,  that  the  early  mikados  ruled  over  a  rather  sparsely 
settled  country,  and  that  their  dominions  were  confined  to  a 
portion  only  of  the  islands.     Despotism  of  the  most  absolute 
character  is  the  earliest   form  of  government  of  which  an 
account  is  preserved.    Though  the  Japanese  maintain  that  the 
abolition  of  the  shogunate  and  the  restoration  of  power  to 
the  Mikado  but  reinstate  the  reigning  house  in  the  authority 
which  of  right  it  always  had,  the  actual  power  has  in  the 
course  of  centuries  not  merely  passed  into  other  hands,  who 
have  administered  it  for  long  periods,  but  the  system  of  gov- 
ernment and  the  organization  of  society  have  undergone  radi- 
cal changes.     In  studying  these  changes  let  us  bear  in  mind 
that  we  are  dealing  with  a  people  whose  homogenity  has  con- 
tinued without  material  change  for  more  than  2,000  years. 


JAPAN  253 

There  was  not  at  any  time  after  Jimmu  an  invading  conqueror, 
nor  is  any  account  preserved  of  the  influx  of  a  servile  race. 
The  present  population  of  the  islands  have  descended  from  its 
early  inhabitants  with  but  slight  and  occasional  intermixture 
of  foreign  blood,  never  enough  to  materially  affect  the  great 
mass.  Whence  the  early  ideas  of  government  were  derived  is 
unimportant.    They  were  essentially  despotic. 

In  202  the  Empress  Jingu  Kogo  invaded  Corea  and  placed 
it  under  tribute.  This  was  followed  by  an  embassy  from  China 
and  the  introduction  into  Japan  of  the  teachings  of  Buddha 
and  Confucius,  and  the  language,  literature  and  laws  of  the 
Chinese.  It  was  several  centuries  however  before  this  pro- 
duced marked  affect,  for  it  is  said  that  the  introduction  of 
Buddhism  is  generally  regarded  as  dating  from  522,  and  that 
the  Japanese  had  no  written  language  till  that  century.  The 
king  of  Kudara  in  Corea  sent  the  Mikado  bonzes,  statues  of 
Buddha,  prayer  books  and  other  religious  paraphernalia.  As 
he  still  adhered  to  the  Shinto  religion  he  asked  for  apothe- 
caries, soothsayers  and  almanac  makers  instead,  for  which  he 
exchanged  munitions  of  war. 

About  the  year  600  the  Empress  Suiko  introduced  into  her 
court  the  manners  of  the  Chinese,  with  whom  at  that  time 
there  was  considerable  intercourse.  How  great  a  change  this 
effected  cannot  be  definitely  stated,  but  it  did  not  materially 
alter  the  form  or  character  of  the  government.  During  her 
reign  the  Buddhist  religion  gained  adherents  rapidly,  and  its 
influence  tended  to  improve  society  and  bring  about  peaceful 
conditions.  The  early  practice  of  burying  living  slaves  and 
wives  with  the  bodies  of  their  deceased  lords  seems  to  have 
continued,  notwithstanding  the  early  prohibition  of  it,  until 
the  reign  of  the  thirtieth  Mikado,  when  a  strict  injunction 
against  it  was  issued. 

In  the  time  of  the  thirty-eighth  emperor,  the  three  chief 
offices  of  Sa-Dai-Jin,  U -Dai- J  in  and  Nai-Dai-Jin  were  created. 
Tenji  also  established  the  office  of  Dai-Jo-Dai-Jin  (great  min- 
ister of  the  great  government),  and  conferred  it  on  his  eldest 
son.  His  friend  Nakatomi  he  made  Nai-Dai-Jin  and  allowed 
him  to  adopt  the   family  name  of  Fujiwara.     This   family 


254  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

played  a  most  important  part  in  the  rulership  of  the  empire 
for  several  centuries.  Prior  to  this  time,  except  during  periods 
of  internal  strife  involving  the  succession,  the  government  was 
administered  directly  by  the  Mikado.  He  led  the  armies  of 
peasant  soldiers,  v^ho  disbanded  and  returned  to  their  peace- 
ful callings  when  war  was  over.  On  the  introduction  of 
Chinese  customs  a  court  nobility  grew  up  around  the  mikado, 
which  in  time  deprived  him  of  all  real  authority.  In  the  early 
centuries  and  down  to  the  time  of  Tenji  Tenno  in  the  last 
half  of  the  sixth  century  there  were  no  considerable  cities, 
and  the  Mikados  shifted  their  residence  though  always  within 
the  Gakmai  or  home  province. 

Kuwammu  Tenno,  fiftieth  Mikado,  established  his  residence 
at  Kioto,  which  remained  the  capitol  of  the  empire  till  recent 
times.  He  caused  many  improvements  to  be  made,  and  con- 
structed canals  and  dams  to  regulate  the  water  courses,  built 
temples  and  palaces,  established  schools  and  encouraged  the 
Buddhist  teachers.  The  relation  of  the  Fujiwara  to  the 
Mikado  and  the  important  special  privileges  they  enjoyed  af- 
forded them  the  means  of  greatly  increasing  their  power.  The 
office  of  Kuwaynbakii,  or  regent,  was  made  hereditary  in  the 
Fujiwaras,  and  from  the  daughters  of  the  house  the  Mikados 
took  their  wives.  With  the  advent  of  weak  princes  early  in 
the  ninth  century  the  practice  commenced  of  inducing  or  forc- 
ing the  Mikado  to  abdicate  in  favor  of  an  infant  member  of 
the  family  and  thus  permit  a  Fujiwara  to  rule  as  regent. 
This  was  carried  to  such  an  extreme  that  all  real  power  was 
taken  from  the  Mikados  and  exercised  by  the  regents.  The 
power  of  the  Fujiwaras  at  court  continued  till  the  close  of  the 
eleventh  century. 

The  growing  influence  and  importance  of  the  noble  houses 
of  the  Taira  and  Minamoto  were  contemporaneous  with  in- 
creasing military  tendencies.  Members  of  these  families  were 
at  the  head  of  the  armies,  resisting  invasions  and  suppressing 
insurrections.  The  Fujiwaras  had  ruled  through  court  in- 
trigues. The  Taira  and  Minamoto  hewed  their  way  with 
the  sword.  With  the  beginning  of  the  twelfth  century  feud- 
alism rapidly  developed.    The  power  of  the  central  despotism 


JAPAN  255 

had  vanished,  and  the  real  force  of  government  was  wielded 
by  lords  who  directed  the  arms  of  the  Samurai  in  the  prov- 
inces. So  marked  was  the  tendency  to  militarism  that  evei^ 
the  priests  of  that  most  peaceful  of  all  religions,  Buddhism, 
appeared  at  the  capitol  in  arms  to  enforce  their  demands.  The 
struggle  for  political  supremacy,  carried  on  by  the  rival  houses 
of  Taira  and  Minamoto,  devastated  the  country  for  centuries 
and  was  more  enduring  than  any  known  war  for  the  succes- 
sion to  a  throne.  Theoretically  the  right  of  the  Mikado  to 
rule  was  always  recognized.  By  the  success  of  one  or  the 
other  faction  no  right  was  estabHshed,  no  claim  of  sovereignty 
denied.  The  struggle  was  for  actual  dominion,  to  be  exer- 
cised in  the  name  of  the  Mikado,  but  in  spite  of  his  feeble 
will.  The  successes  of  the  Minamoto  and  their  allies  under 
Yoritomo  near  the  close  of  the  twelfth  century  resulted  in  his 
taking  the  title  and  office  of  Sei-i  Shogun,  which  from  that 
time  became  hereditary  in  the  Minamoto  family,  and  its  pos- 
sessor wielded  the  real  power  of  the  government.  Yoritomo 
established  a  council  of  state,  who  were  distributed  over  the 
provinces  to  share  as  military  officers  the  power  of  the  civil 
governors.  He  systematized  the  feudal  system  and  is  called 
its  founder.  He  made  his  headquarters  at  Kama  Kura  near 
the  site  of  modern  Yokohama,  where  he  died  in  1199.  Yori- 
tomo is  credited  with  improving  the  administration  by 
establishing  a  court  of  justice,  levying  a  uniform  tax  and 
forbidding  priests  to  be  warriors.  Though  wielding  the  actual 
power,  he  always  went  through  the  form  of  obtaining  the 
sanction  of  the  Mikado. 

On  the  death  of  Yoritomo  his  son  Yoriiye  succeeded  as 
Shogun,  but  being  weak  and  dissolute,  he  at  once  fell  under 
the  influence  of  his  mother's  family.  At  her  instance  a  family 
council  with  her  father,  Ho  jo  Tokimasa,  at  the  head  was 
formed.  This  council  assumed  the  real  power  and  admin- 
istered the  government  in  the  name  of  the  Shogun  and  Mi- 
kado, who  were  allowed  to  live  in  idleness  and  dissipation. 
The  regency  of  the  house  of  Hojo  continued  till  1334.  The 
shikken,  as  the  head  of  the  house  was  styled,  took  care  that  the 
shogunate  should  never  pass  into  strong  hands  but  should 


256  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

always  be  held  by  an  infant  or  a  weakling.  Though  the 
Hojos  are  given  a  hard  name  in  history,  under  their  rule 
the  country  was  generally  at  peace  and  growing  in  prosperity. 
The  intrigues  and  murders  at  court  were  perhaps  of  less  con- 
sequence than  the  increased  security  of  the  common  people, 
but  this  security  could  hardly  have  been  of  an  exalted  char- 
acter under  the  growing  power  of  the  military  class. 

While  incursions  into  Japan  from  Corea  are  recorded,  none 
of  them  were  in  such  force  as  to  seriously  threaten  the  inde- 
pendence of  the  empire.  In  1275  the  forces  of  the  great 
Kublai  Khan  took  possession  of  Tsushima  and  Iki  and  at- 
tempted to  land  in  Kiushiu,  but  were  driven  off.  Again  in 
1 28 1  a  far  larger  army  was  landed  in  Kuishiu,  but  -the  Japa- 
nese under  Ho  jo  Tokimmie  met  and  routed  them,  and  their 
fleet  was  destroyed  by  a  typhoon.  To  one  familiar  with  the 
struggle  for  supreme  power  in  western  nations  it  seems  ex- 
ceeding strange  that  through  all  the  centuries  care  was  always 
taken  to  preserve  the  succession  and  nominal  rule  of  the 
Mikado,  and  that  after  the  power  of  the  Shogun  was  estab- 
lished the  same  system  was  followed  in  reference  to  his  office. 
The  overthrow  of  the  Hojo  in  1134  was  followed  by  an  at- 
tempt on  the  part  of  the  Mikado,  Go-Daigo,  to  resume  the 
active  exercise  of  power  and  by  the  Ashikaga  to  rule  as 
Shogun.  In  order  to  accomplish  this  an  attempt  to  depose  the 
Mikado  by  a  forced  abdication  in  favor  of  the  Ashikaga's 
choice  was  made  and  resulted  in  a  long  internal  struggle, 
each  side  drawing  to  its  support  the  retainers  of  its  partisans. 
For  fifty-six  years  there  were  two  rival  dynasties,  one  of  the 
north  and  the  other  of  the  south.  During  the  wars  of  this 
period  the  country  was  devastated,  and  the  condition  of  the 
people  rendered  correspondingly  miserable.  Piracy  developed 
on  the  coast,  and  Japanese  corsairs  ravaged  the  coasts  of  China 
and  Corea.  After  the  settlements  of  their  differences  by 
agreement  of  the  rival  claimants  in  1392  the  country  enjoyed 
a  brief  respite,  but  the  spirit  of  faction  and  the  love  of  strife 
attending  the  increase  of  the  local  and  personal  power  of  the 
country  nobility  soon  plunged  the  country  into  civil  war  again. 
The  samurai  followed  the  daimio  to  whom  they  were  at- 


JAPAN  257 

tached,  no  matter  what  the  nature  of  the  quarrel.  The  condi- 
tion of  Japan  seems  to  have  been  essentially  the  same  as  that 
of  Europe  during  feudal  times,  when  each  local  ruler  fought 
his  equals  and  murdered  and  pillaged  the  defenceless.  The 
priests  contributed  nothing  for  the  betterment  of  conditions, 
but  by  their  intrigues  and  licentiousness  aggravated  the  miser- 
ies of  the  times.  Kioto  cased  to  be  a  place  of  safety,  and  the 
old  court  nobility — the  KugS — were  forced  to  find  shelter  in 
the  castles  of  the  Daimios  in  the  provinces. 

The  Shogunate  of  the  Ashikaga  terminated  in  1573,  and  a 
vacancy  ensued  until  1603,  when  Tokugawa  lyeyasu  was  in- 
vested with  the  office.  The  first  European  to  reach  Japan 
was  the  Portugese  Mendez  Pinto  in  1542.  He  introduced  fire- 
arms and  the  Christian  religion.  With  the  firearms  they 
were  'greatly  pleased,  but  the  progress  of  Christianity  was 
slow  and  followed  by  bitter  persecution.  The  religion  of  the 
west  cannot  be  said  to  have  ever  exercised  a  marked  influence 
on  Japanese  society,  and  the  wonderful  awakening  of  recent 
times  has  been,  not  to  the  religion,  but  to  the  arts  and  civiliza- 
tion of  the  west. 

After  the  conclusion  at  Sekigahara  of  the  bloody  wars 
which  resulted  in  the  elevation  of  lyeyasu  to  the  supreme 
power  as  Shogun,  he  proceeded  to  complete  the  system  of 
feudal  tenures  and  to  parcel  out  the  provinces  among  his  sup- 
porters. He  also  took  measures  to  eradicate  Christianity. 
Under  his  administration  the  feudal  system  reached  its  height 
with  the  Shogun  as  its  head,  instead  of  the  Mikado.  His  great 
success  in  attaining  his  two  main  objects,  the  perpetuation  of 
the  supreme  power  in  his  family  and  the  peace  of  the  country, 
is  attested  by  the  fact  that  his  successors  ruled  substantially 
in  peace  for  the  ensuing  268  years. 

In  Japan,  as  in  feudal  Europe,  the  real  power  of  the  no- 
bility was  based  on  military  organization  and  a  theory  of 
title  to  land.  Without  attempting  any  radical  change  of 
theory,  lyeyasu  moulded  the  system  to  secure  his  own  power. 
There  were  thirty-six  leading  families  besides  his  own  who 
took  the  name  of  Matsiidoira  and  ninety  of  the  Koknshiu, 
smaller    landlords,    whose    revenue    ranged    from    10,000    to 


258  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

100,000  koku  of  rice  per  year.  These  families  held  theoretic- 
ally as  feudatories  under  the  Mikado,  but  actually  in  their  own 
right.  To  secure  his  own  power  lyeyasu  seized  the  lands  of 
his  enemies  by  force  and  parcelled  them  out  among  his  own 
retainers.  The  system  of  sub-infeudation  under  the  great 
daimios  prevailed  in  Japan  as  well  as  in  Europe.  A  peculi- 
arity of  the  Japanese  system  was  that  the  estate  of  a  daimio 
could  neither  be  enlarged  or  diminished  in  any  way  without 
the  express  consent  of  the  Shogun.  lyeyasu's  retainers,  called 
hatamotos  or  flag-supporters,  ranked  below  the  daimios,  and 
had  each  a  small  train  of  from  three  to  thirty  retainers.  They 
numbered  about  80,000  in  the  empire  and  constituted  the  mili- 
tary basis  of  his  power  by  which  he  held  the  Mikado  practi- 
cally as  a  captive,  though  nominally  his  sovereign.  Below 
these  were  the  private  soldiers,  also  belonging  to  the  Samurai 
or  military  class  and  under  the  command  of  the  Shogun. 
lyeyasu  observed  the  policy  of  separating  the  great  daimios, 
who  had  been  or  were  suspected  of  being  hostile  to  him,  by 
assigning  them  disconnected  tracts  of  land  between  which  he 
placed  his  own  tried  vassals.  The  Daimios  and  Samurai,  like 
the  feudal  lords  of  Europe,  despised  work  and  all  who  labored. 
Many  of  them  were  dissolute  and  given  to  brawling  and 
robbery. 

The  head  of  the  family  held  not  only  the  title  to  the  land 
but  had  full  power  over  all  its  members.  The  wife  belonged 
to  the  family  of  her  husband.  The  practice  of  adoption  was 
common,  when  there  was  danger  of  a  failure  of  male  heirs  to 
fill  the  military  tenancy,  in  which  case  the  land  would  escheat 
to  the  lord.  As  in  Europe  the  lords  allowed  the  tillers  of 
the  soil  only  a  meager  subsistence.  The  idle,  criminal  soldiery 
took  the  lion's  share  and  gave  no  return  for  it.  The  essential 
elements  of  the  governmental  system  were  ownership  and 
hereditary  tenure  of  the  land  enforced  by  military  organiza- 
tion. In  lyeyasu's  time  the  Mikado  was  unable  to  direct  the 
military  force  and  therefore  shorn  of  actual  power,  though 
always  recognized  as  the  rightful  ruler  and  the  source  of  all 
titles  of  honor,  which  men  prized  as  highly  in  Japan  as  any- 
where in  Europe.     The  rule  of  the  Tokugawa  from  the  time 


JAPAN  «  259 

of  lyeyasu  to  1854  was  distinguished  by  a  settled  policy  of 
isolation  from  the  outside  world  and  military  rulership  at 
home.  The  feudal  lords  with  the  Shogwi  at  their  head  and 
the  Samurai  at  their  command  maintained  peace  at  home, 
while  population  multiplied.  The  intercourse  with  the  Dutch, 
the  only  European  nation  favored  with  a  commercial  treaty, 
was  carried  on  under  the  most  humiliating  restrictions  and 
confined  to  the  places  designated  by  the  government.  Inter- 
course with  China  seems  to  have  been  more  favored.  Though 
the  military  class  was  strongly  fortified  in  the  possession  of 
all  the  advantages  of  the  Japanese  system,  the  agitation  which 
resulted  in  the  wonderful  modern  awakening  to  new  ideas 
came  from  the  scholars  and  thinkers  among  the  nobility  and 
Samurai.  The  extreme  poverty  and  ignorance  of  the  Hinin — 
common  people — afforded  them  no  opportunity  for  education, 
interchange  of  thought,  or  combination.  The  nobility  and 
Samurai  during  the  centuries  of  peace  became  more  students 
than  warriors,  and  their  researches  into  the  early  history  and 
religion  of  the  country  resulted  in  the  rapid  development  of  a 
sentiment  in  favor  of  the  abolition  of  the  shogunate  and  a 
return  to  the  ancient  form  of  government  with  the  Mikado  as 
the  real  head. 

The  advent  of  admiral  Perry  with  a  demand  for  a  treaty 
of  commerce  with  the  United  States  in  1854  resulted  in  open- 
ing new  ports  for  trade  by  the  Shogun.  This  was  quickly 
followed  by  treaties  with  other  governments.  The  opponents 
of  the  Bakufu,  or  Shogun  government,  violently  opposed  the 
new  treaties  and  used  this  action  of  the  government  as  an 
argument  in  favor  of  the  overthrow  of  the  power  of  the 
Shogun  and  restoration  of  the  Mikado  to  his  ancient  auth- 
ority. Though  apparently  reactionary  in  these  teachings  and 
purposes,  they  have  been  real  leaders  in  the  wonderful  awaken- 
ing which  has  followed.  Not  only  has  the  Mikado  been  re- 
stored to  his  ancient  authority,  but  he  has  been  far  more 
active  in  promoting  intercourse  with  the  outside  world  and 
causing  the  youth  of  Japan  to  be  instructed  in  the  learning 
of  the  west  than  the  Bakufu  had  been.  As  a  result  of  the 
destruction  of  the  power  of  the  Shogun  the  whole  system  of 


26o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

which  he  was  a  representative,  and  which  held  such  complete 
dominion  for  two  centuries  and  a  half,  has  been  swept  away 
and  a  reconstruction  of  the  social  system  has  followed.  The 
power  of  the  great  Daimios,  amounting  almost  to  sovereignty 
in  their  provinces,  has  been  completely  broken,  and  the  mili- 
tary order  has  been  abolished.  At  the  time  of  this  revolution 
the  whole  population  numbered  about  34,000,000,  of  whom 
about  2,000,000  belonged  to  the  Samurai.  At  the  head  of  the 
nobility  stood  the  Shogtin  with  a  large  army  of  retainers  and 
great  estates.  Next  came  the  DaimioSj  great  landowners, 
with  their  military  feudatories.  Of  Daimios  in  1862  there 
were  255,  classified  as  follows,  three  Sanke,  descended  from 
the  three  youngest  sons  of  lyeyasu,  on  whom  he  conferred 
great  fiefs.  Next  thirty-six  Kokushiu  then  seventy-five  To- 
zama  and  lastly  141  Fudai.  These  were  ranked  according  to 
their  revenues  measured  in  Koku  of  rice,  a  measure  equal  to 
a  trifle  less  than  five  bushels.  The  revenues  of  the  different 
Daimios  ranged  from  not  less  than  10,000  to  more  than 
1,000,000  Koku  of  rice.  Next  came  the  Hatamoto,  immediate 
vassals  of  the  Shogun,  with  incomes  ranging  from  500  to 
9,999  Koku,  having  from  three  to  thirty  vassals  each  and 
filling  many  offices  of  state.  They  numbered  about  80,000 
families.  Then  the  Gokenin.  The  Samurai  were  exempt 
from  taxes  and  privileged  to  wear  swords.  The  common 
people  were  divided  into  Hiakusho,  peasants,  Shokonin — '■ 
handcrafts  men — and  Akindo — shopkeepers.  Outside  and 
still  below  these  were  the  Etas  (unclean)  and  Hinin — paupers. 
The  above  classification  does  not  include  the  Alikado  and  the 
Kuge,  or  old  court  nobility,  higher  in  rank  but  wanting  in 
actual  power  and  revenue.  Of  the  Kugc  155  families  were 
recognized.  Though  regarded  as  superior  in  rank  even  to 
the  Shogun,  under  the  feudal  system  they  lost  both  their 
incomes  and  estates,  and  at  the  time  of  the  revolution  many 
of  them  were  abjectly  poor. 

After  the  fall  of  the  Shogunate  the  Daimios,  partly  of  their 
own  accord  and  partly  .on  compulsion,  surrendered  their 
authority  to  the  Mikado.  They  were  mostly  retained  as 
governors  for  a  brief  period,  but  the  old  provinces  were  soon 


JAPAN  261 

broken  up  and  divided  into  Ken,  governmental  districts.  On 
giving  up  their  possessions  the  Daimios  and  Saniiirai  were  to 
receive  one-tenth  the  revenue,  and  were  reHeved  of  the  sup- 
port of  their  Samurai  and  Yashiki  with  which  they  had  before 
been  burdened.  The  Samurai  were  first  excused  from  wear- 
ing swords  and  afterward  forbidden  to  wear  them.  Their  in- 
comes were  greatly  reduced  and  they  suffered  most  of  any 
class  from  the  change.  Society  then  became  divided  and 
classified  as  follows: 

1.  The  Mikado. 

2.  The  imperial  family. 

3.  The  Kuwa  Zoku — the  nobility  including  both  former 
Kuge  and  Daimios. 

4.  Shikoku,  respectable  families,  old  Samurai. 

5.  Common  people. 

The  government  after  the  restoration  was  in  its  principles 
essentially  the  ancient  one,  with  the  power  theoretically  in  the 
Mikado  but  actually  exercised  of  necessity  through  the  instru- 
mentality of  ministers  and  bureaus.  The  great  council  of 
state  consisted  of  three  ministers,  at  whose  sitting  the  Mikado 
presided,  and  this  was  the  supreme  legislative  and  adminis- 
trative authority. 

Ten  departments  of  government  were  established,  over 
each  of  which  a  minister  presided,  namely.  Foreign  Affairs,  In- 
terior, Finance,  War,  Marine,  Education,  Worship  (afterward 
abolished).  Public  Works,  Justice  and  Imperial  Household. 
The  country  was  divided  into  three  Fu — chief  towns — seventy- 
two  Ken — districts — A  Han — the  Riukiu  Islands — and  the 
colony  of  Yezo.     Over  each  Ken  there  is  a  governor. 

The  restoration  of  the  Mikado  was  soon  followed  by  a 
demand  for  popular  representation  in  the  government  and  a 
constitution  limiting  the  powers  of  the  various  departments. 
In  1878  provision  was  made  for  local  assemblies  in  the  prov- 
inces. The  qualifications  for  electors  were  that  they  should 
be  males  of  the  age  of  twenty  years  and  pay  a  land  tax  of 
five  dollars — voting  to  be  by  ballot.  These  assemblies  proved 
so  satisfactory  that  on  February  11,  1889  the  Mikado  promul- 


2'^2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

gated  a  constitution  to  take  effect  the  following  year  on  the 
convening  of  the  Diet  for  which  it  provided. 

The  most  important  provisions  of  the  constitution  are  as 
follows : 

"The  Empire  of  Japan  shall  be  reigned  over  and  governed 
by  a  line  of  Emperors  unbroken  for  ages  eternal." 

The  succession  shall  be  to  imperial  male  descendants  ac- 
cording to  the  imperial  house  law. 

The  emperor  exercises  legislative  power  with  the  concur- 
rence of  the  Imperial  Diet,  which  he  convenes  and  dissolves. 
In  cases  of  urgency,  when  the  Diet  is  not  in  session,  Imperial 
ordinances  may  be  promulgated  to  have  effect  until  the  next 
session  of  the  Diet. 

The  emperor  determines  the  organization  of  the  adminis- 
tration, appoints  and  removes  civil  and  military  officers  and 
fixes  their  salaries.  He  commands  the  army  and  navy,  de- 
clares war,  makes  peace  and  concludes  treaties.  He  confers 
titles,  ranks  and  marks  of  honor,  grants  pardons  and  com- 
mutes punishments. 

The  second  chapter  provides  that  the  conditions  necessary 
for  being  a  Japanese  subject  shall  be  determined  by  law,  that 
subjects  may  be  appointed  to  civil  and  military  offices  equally, 
are  amenable  to  service  in  the  army  and  navy,  are  at  liberty 
to  change  their  abode  within  legal  limits,  shall  not  be  ar- 
rested, detained,  tried  or  punished  unless  according  to  law  by 
judges  determined  by  law,  that  houses  shall  not  be  entered  or 
searched  without  consent  except  in  cases  provided  by  law, 
that  the  rights  of  property  of  Japanese  subjects  shall  be  in- 
violate and  that  within  limits  not  prejudicial  to  peace  and 
order  they  shall  enjoy  freedom  of  religious  belief,  that  within 
limits  of  law  they  shall  enjoy  freedom  of  speech,  press  and 
public  meetings.  All  these  provisions  apply  to  the  army  and 
navy,  except  as  modified  by  the  laws  and  rules  governing  them. 

The  Imperial  Diet  established  by  the  constitution  consists  of 
an  upper  and  lower  house.  The  House  of  Peers  is  composed 
of  members  of  the  Imperial  family,  of  the  orders  of  nobility 
and  persons  nominated  thereto  by  the  emperor.  The  House 
of  Representatives  is  composed  of  members  elected  by  the 


JAPAN  263 

people  according  to  law.  Every  law  requires  the  consent  of 
the  Imperial  Diet. 

Proposed  laws  may  be  initiated  by  the  Emperor  or  either 
house.  The  Diet  shall  be  convened  every  year  and  sessions 
shall  last  three  months,  but  may  be  prolonged  by  Imperial 
order,  and  may  be  convoked  in  extra  session  by  Imperial 
order.  Sessions  of  both  houses  shall  begin  and  end  together. 
When  the  House  is  dissolved  the  peers  must  be  prorogued. 
After  dissolution  of  the  House  of  Representatives  a  new 
House  must  be  convoked  within  five  months.  No  debate  or 
vote  can  be  had  in  either  house  unless  one  third  of  all  the 
members  are  present,  and  a  majority  decides.  Deliberations 
must  be  public,  unless  secret  sessions  are  demanded  by  the 
Government.  Each  house  may  enact  rules  for  its  government, 
and  members  shall  not  be  held  to  answer  elsewhere  for  expres- 
sions or  votes  given  in  the  House.  During  a  session  members 
are  privileged  from  arrest,  except  for  flagrant  offenses,  un- 
less with  the  consent  of  the  House. 

The  Ministers  of  State  and  Delegates  of  the  Governnient 
may  at  any  time  take  seats  and  speak  in  either  house.  Minis- 
ters of  State  shall  give  their  advice  to  the  Emperor  and  be 
responsible  for  it.  All  laws  and  ordinances  require  the  coun- 
ter-signature of  a  Minister  of  State. 

A  Privy  council,  whose  powers  are  not  defined,  is  recog- 
nized, to  deliberate  with  the  Emperor  on  important  matters 
of  State.  "The  Judicature  shall  be  exercised  by  the  courts 
of  law  according  to  law  in  the  name  of  the  Emperor.  The 
organization  of  the  courts  of  law  shall  be  determined  by  law." 

Judges  shall  be  appointed  from  qualified  persons  and  hold 
ofiice  during  good  behavior.  Trials  shall  be  public  unless  ex- 
ceptional circumstances  demand  secrecy.  New  taxes  or 
changes  in  old  ones  can  only  be  made  by  law,  and  national 
loans  must  have  the  consent  of  the  Diet. 

Projects  for  amending  the  constitution  may  be  submitted  b5' 
Imperial  Order,  but  must  have  two  thirds  of  the  members 
present  and  receive  the  vote  of  two-thirds  of  those  present. 
The  Diet  cannot  modify  the  Imperial  House  law,  the  consti- 
tution cannot  be  modified  by  the  Imperial  House  law,  and  no 
modification  of  either  can  be  introduced  during  a  Regency. 


264  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  changes  in  the  form  of  the  government  afford  some 
indication  of  the  real  progress  made  by  the  Japanese  people 
in  the  last  half  century.  It  is  unique.  A  nation  which  had 
lived  in  what  may,  as  compared  with  the  lot  of  other  nations, 
be  fairly  designated  as  profound  peace  for  two  hundred  and 
fifty  years,  suddenly  became  thoroughly  dissatisfied  with  its 
internal  system  and  external  relations.  The  tottering  Shogun 
government  opened  the  ports  to  foreigners.  Its  enemies  took 
advantage  of  the  prevailing  prejudice  against  foreigners  and 
Christians  to  overthrow  the  Shogun.  This  accomplished  and 
the  Mikado  restored,  not  only  were  the  old  treaties  ratified, 
but  new  and  more  liberal  ones  were  made.  The  whole  military 
class  was  destroyed,  as  a  class,  yet  following  that  destruction 
the  military  spirit  has  been  aroused,  and  marvelous  advance- 
ment in  the  organization  of  army  and  navy  followed,  civil 
wars  accompanying  the  change  were  quickly  terminated,  and 
whatev-er  the  impulse  prompting  the  action  of  either  party,  the 
result  is  a  determined  effort  to  produce  a  better  form  of 
government  and  improved  social  and  economic  conditions. 

No  people  on  earth  have  manifested  such  a  willingness  to 
learn  and  profit  from  the  instruction  of  foreign  people  as  the 
Japanese  during  the  last  fifty  years.  Not  only  have  they 
established  numerous  schools  throughout  the  empire,  in  which 
foreign  as  well  as  native  teachers  are  employed,  but  many  of 
the  flower  of  Japanese  youths  have  been  educated  in  the  lead- 
ing universities  of  Europe  and  America.  Nor  has  the  purpose 
been  merely  to  gain  knowledge  beneficial  to  the  government  or 
the  ruling  class,  but  on  the  contrary  everything  useful  to  the 
pepole  as  well  as  tending  to  the  strength  and  standing  of  the 
nation  has  been  eagerly  sought  after.  The  recent  wars  with 
China  and  Russia  clearly  demonstrate  the  marked  progress 
made  in  the  art  of  war,  while  the  arts  of  peace  have  been 
cultivated  with  avidity,  and  national  pride  and  military  spirit 
have  become  correspondingly  active.  The  progress  has  been 
strictly  Japanese.  It  has  not  been  induced  by  any  influx  of 
S'  dominating  superior  race  nor  by  any  foreign  directing  hand. 
The  people  of  Japan,  living  under  a  form  of  government 
which  in  theory  was  an  extreme  representative  of  despotism, 


JAPAN  265 

have  reached  out  after  wisdom  wherever  they  could  find  it, 
have  taken  home  the  lessons  they  have  learned  and  assimi- 
lated foreign  ideas  to  Japanese  conditions  with  marvelous 
rapidity.  Under  an  absolute  despotism  the  spirit  of  progress 
has  developed  with  such  strength  as  to  rule  the  rulers. 

The  labors  of  progressive  Japanese  have  been  recognized 
and  their  counsel  followed  more  readily  than  those  of  re- 
formers in  republican  America.  Of  all  the  nations  of  the 
earth  the  Japanese  have  in  the  last  half  century  been  the  most 
progressive,  yet  the  multitude  of  common  people  are  still  ex- 
tremely poor,  and  the  problems  confronting  the  government 
and  people  are  now  no  less  complicated  and  perplexing  than 
heretofore.  The  basis  of  this  progress  it  must  be  clearly  ap- 
parent did  not  lie  in  the  genius  of  their  government.  Nor 
can  it  be  attributed  to  the  effect  of  the  teachings  of  Christians, 
for  in  no  country  has  less  progress  been  made.  Indeed  one 
of  the  forms  of  agitation  preceding  the  new  development  was 
for  a  restoration  of  the  ancient  religion,  Kami  worship  or 
Shintoism.  Much  of  the  learning  and  customs  of  the  Japa- 
nese was  borrowed  from  China.  The  teachings  of  Confucius 
had  long  been  studied,  and  the  form  of  government  and  or- 
ganization of  society  were  moulded  to  a  great  extent  by  them. 
Buddhism  had  many  followers.  The  constant  inculcation  in 
the  minds  of  the  children  of  the  duty  of  obedience  to  parents 
till  their  death  and  of  worshipful  submission  to  the  paternal 
authority  of  the  Emperor,  which  furnished  the  foundation  of 
Chinese  civilization,  seems  to  have  developed  happier  domestic 
conditions  in  the  islands  than  on  the  continent.  Notwith- 
standing the  effort  to  return  to  the  ancient  religion  and  the 
ancient  form  of  government,  rapid  changes  followed,  result- 
ing in  the  admission  of  light  on  all  questions,  the  emergence 
of  the  Mikado  from  that  seclusion  in  which  he  had  been  re- 
garded more  as  an  object  of  religious  veneration  than  a  ruler 
to  be  obeyed,  to  be  seen,  known,  advised  and  consulted  with 
by  his  subjects,  and  in  breaking  down  the  barriers  which  ex- 
cluded Christianity. 

Though  there  were  some  violent  dissensions  in  the  early 
years  of  constitutional  government  in  Japan  the  trend  toward 


266  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

settled  conditions  of  order  has  been  continuous.  During  the 
first  twelve  sessions  of  the  diet,  extending  over  a  period  of 
eight  years,  there  were  twelve  dissolutions,  but  during  the 
next  thirteen  sessions,  extending  over  a  period  of  eleven  years 
there  were  but  two.  During  the  first  eight  years  there  were 
six  changes  of  cabinets;  while  during  the  next  eleven  years 
there  were  but  five. 

Authorities 

Arthur  May  Knapp :    Feudal  and  Modern  Japan. 

Wm.  E.  Griffs:    The  Mikado's  Empire. 

Count  Okuma:     Fifty  Years  of  New  Japan. 

J.  J.  Rein:    Japan. 

Toyokichi    lyenaga:      The    Constitutional    Development    of 

Japan. 
Foreign  Constitutions. 


CHAPTER  XII 


Turkey 


The  Turkish  race,  that  now  dominates  the  country  which 
was  the  seat  of  the  early  germs  of  ^western  civilization,  made 
its  first  appearance,  so  far  as  is  known  to  history,  in  central 
Asia,  where  Chinese  accounts  locate  it  about  i8o  B.C.  In  the 
time  of  Justinian  the  Turks  established  a  large  empire  with 
their  chief  seat  in  the  vicinity  of  the  Altai  Mountains.  The 
mode  of  life  of  the  people  was  mainly  nomadic,  and  the  do- 
minion established  was  not  enduring.  In  course  of  time  the 
tribes  became  scattered,  and  under  pressure  from  Mongol  ene- 
mies early  in  the  thirteenth  century  one  of  them  passed  through 
Persia  into  Armenia.  Having  aided  the  Seljuk  emperor  in  a 
battle  with  the  Mongols,  it  was  allowed  to  settle  on  the  Byzan- 
tine frontier.  On  the  fall  of  the  Seljuk  Empire  Osman,  chief 
of  this  particular  tribe,  succeeded  in  extending  his  power  over 
kindred  tribes  scattered  throughout  Asia  Minor,  and  in  1301 
began  to  coin  money  and  to  have  the  public  prayers  read  in 
his  name  as  monarch.  From  his  accession  to  power  the 
modern  Turkish  empire  dates.  Like  most  founders  of 
despotisms  he  was  a  man  of  capacity  and  morals  superior  to 
most  of  his  contemporaries,  and  devoted  his  energies  with 
singular  disinterestedness  to  the  establishment  of  order  and 
justice,  as  well  as  to  military  operations  against  his  enemies. 
He  combined  with  the  religious  zeal  of  the  devout  Moslem  and 
its  characteristic  military  spirit  great  generosity  and  love  of 
justice.  He  was  devoid  of  avarice,  and  on  his  death  his 
wealth  was  found  to  include  only  two  or  three  suits  of  clothes, 
a  few  weapons,  some  horses  and  a  flock  of  sheep.  His  ad- 
ministration of  justice  was  so  far  superior  to  that  of  the 
Greek  emperor  that  the  subjects  of  the  latter  went  to  him 
for  protection.  For  a  century  the  Ottoman  Empire  was  vigor- 
ously administered  and  its  boundaries  extended  by  the  descend- 

267 


268  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ants  of  Osman,  till  the  reign  of  Bayazid  I,  when  the  Tartar 
hosts  under  Timur  overran  the  empire,  annihilated  Bayazid's 
army  and  took  him  prisoner  in  1403.  Timur  withdrew  and 
Muhamed,  son  of  Bayazid,  who  died  in  captivity,  restored  the 
empire.  In  1453  Muhamed  II  besieged  and  took  Constan- 
tinople and  put  an  end  to  the  Roman  Empire  of  the  east,  which 
had  dwindled  to  a  mere  shadow.  In  1481  a  Turkish  army 
crossed  the  Adriatic  into  Italy  and  stormed  Otranto,  which 
however  they  were  not  able  to  hold.  Under  his  successor, 
Bayazid  II,  the  Turks  won  their  first  great  naval  victory 
off  Sapienza  over  the  Venetians.  The  empire  continued  to 
grow  until  the  reign  of  Suleyman  I,  under  whom  it  reached 
its  greatest  extent  and  power,  but  also  met  with  the  best  or- 
ganized and  most  determined  resistance.  From  Constanti- 
nople the  Sultan  ruled  in  Europe  almost  to  the  gates  of 
Vienna ;  in  Asia  beyond  the  Tigris,  and  in  Africa  from  Egypt 
to  Algiers. 

Starting  with  Osman  in  1301  and  continuing  till  the  death 
of  Suleyman  in  1566  the  Turks  had  a  succession  of  remark- 
ably vigorous  and  successful  rulers.  The  degeneration  and 
decay,  which  usually  manifests  itself  so  quickly  in  the  progeny 
of  absolute  monarchs,  did  not  appear,  but  Suleyman  is  given 
the  character  of  one  of  the  best  and  most  accomplished  rulers 
of  his  age,  and  for  forty-six  years  his  vast  dominions  felt  the 
vigor  of  his  untiring  energy.  Although  his  reign  was  sullied 
by  his  execution  of  his  brother-in-law,  whom  he  had  made 
grand  vizier,  and  by  other  arbitrary  executions,  and  by  great 
barbarities  committed  by  his  army  during  the  siege  of  Vienna, 
such  things  were  characteristic  of  that  age.  The  Turkish 
Empire  then  included  all  the  principal  seats  except  Rome  of 
that  ancient  civilization  which  we  have  inherited.  Chaldea, 
Babylon,  Nineveh,  Egypt,  Phoenicia,  Greece,  Carthage,  Pales- 
tine, Constantinople  all  Asia  Minor  and  most  of  the  Greek 
islands  were  subject  or  tributary  to  the  Sultan.  The  ruler 
was  descended  from  a  barbarous  tribe  of  central  Asia  through 
the  male  line,  intermixed  with  more  polished  races  through 
the  females.  He  ruled  entirely  in  accordance  with  the  theory 
of  government  established  by  Mohammed  and  the  Caliphs.  He 


TURKEY  269 

was  absolute  in  the  sense  that  his  orders  must  be  obeyed,  and 
that  he  could  not  be  called  to  account  for  any  act  by  any  con- 
stitutional authority.  The  Sultans  have  in  fact  at  all  times 
exercised  arbitrary  power,  and  have  put  to  death  without  trial 
such  persons  as  they  chose,  when  they  could  find  instruments 
to  execute  their  will.  In  the  administration  of  the  govern- 
ment, however,  the  theory  is  not  arbitrary  power  but  divine 
law  as  declared  in  the  Koran.  All  questions  in  courts  of 
justice  are  to  be  determined  by  the  law  declared  by  the 
Prophet,  when  such  can  be  found,  and  in  cases  where  the 
Koran  furnishes  no  rule,  the  precedents  established  by  the 
Prophet  and  the  early  Caliphs  are  of  great  a,uthority. 

The  feudal  system,  which  was  already  declining  in  western 
Europe  in  the  time  of  Osman,  never  gained  much  hold  in  the 
territory  included  in  the  Turkish  empire.  As  a  result  of  the 
Crusades  it  was  established  and  maintained  at  Jerusalem  dur- 
ing the  dominion  of  the  Franks,  but  expired  after  they  were 
driven  out.  The  spirit  of  the  Koran,  following  that  of  the 
new  testament  in  this  respect,  is  one  of  equality,  and  no  order 
of  nobility  existed  in  the  empire.  Equality  however  referred 
only  to  free  males.  Slavery  was  recognized,  and  women 
were  regarded  as  inferiors.  Polygamy  has  always  been  al- 
lowed, but  in  fact  is  only  practiced  by  a  very  small  number 
of  the  people.  The  teachings  of  the  Koran  constantly  magnify 
the  value  of  the  future  life  and  the  future  joys  of  the  true 
believers  who  are  saved  and  the  frightful  torments  of  the 
damned.  The  heaven  offered  is  a  sensual  one,  fitted  to  the 
low  instincts  of  the  Arabs  of  his  time.  Mohammed  taught 
his  followers  to  despise  the  things  of  this  world,  and  while  he 
made  comparatively  little  effort  to  perfect  a  governmental 
system,  what  he  did  in  that  line  was  enjoined  as  a  religious 
duty  and  became  at  once  binding  as  a  civil  and  religious  duty. 
Herein  lies  a  marked  contrast  between  the  teachings  of  Jesus 
and  those  of  Mohammed.  Jesus  announced  the  moral  law 
and  the  necessity  for  its  observance  in  order  to  gain  future 
happiness,  but  made  no  attempt  to  promulgate  a  code  of  civil 
law.  Throughout  the  whole  history  of  the  Turkish  empire 
the  religious  influence  has  been  of  prime  importance  in  mould- 


270  EVOLUTION  OF  GOVERNMENTS  AND  L.\WS 

ing  public  sentiment  and  private  character.  At  the  time  of 
Suleyman's  reign  Turkey  was  at  least  one  of  the  most  ad- 
vanced nations  in  agriculture,  manufactures,  internal  com- 
merce and  in  its  schools  and  administration  of  the  laws.  Its 
theory  of  government  and  code  of  laws  were  however  un- 
progressive,  and  while  the  government  of  today  may  not  be 
distinctly  worse  than  that  under  Suleyman,  it  appears  to  be 
so  by  comparison  with  the  Christian  nations. 

From  the  reign  of  Suleyman  the  fortunes  of  the  Turks 
began  to  wane.  His  son  and  successor  Selim  II  was  a  weak 
debauchee,  the  first  of  the  line  who  shrank  from  the  dangers 
of  war  and  preferred  the  pleasures  of  the  palace.  Murad  III 
who  succeeded  him  had  all  the  vices  and  weaknesses  of  his 
father,  and  the  administration  fell  into  the  hands  of  corrupt 
favorites.  The  Janissaries,  to  whom  as  the  first  regular  stand- 
ing army  of  Europe  was  due  much  of  the  credit  of  the  vic- 
tories under  preceding  reigns,  manifested  a  disposition  similar 
to  that  of  the  old  Praetorian  guard  of  the  Romans.  They 
mutinied  on  several  occasions  and  compelled  compliance  with 
their  demands.  Here  followed  a  succession  of  weaklings  and 
in  1622  Osman,  who  sought  to  free  himself  from  the  Janis- 
saries, was  deposed  and  soon  after  murdered  by  his  vizier 
whom  he  had  deposed. 

Murad  IV,  who  ascended  the  throne  in  1623,  had  the  old 
time  vigor  of  the  Osmanlis.  He  caused  the  leaders  of  the 
mutinous  Janissaries  to  be  beheaded,  and  proceeded  to  purge 
the  administration  of  its  corrupt  elements  by  causing  all  such 
as  he  deemed  necessary  to  be  put  to  death.  He  was  a  re- 
former, who  carried  out  his  reforms  by  the  methods  of  the 
despot.  His  successor  Ibrahim  again  exhibited  the  weakness 
and  folly  of  a  princely  debauchee.  After  his  time  there  were 
examples  of  vigorous  administration  by  able  grand  viziers, 
but  the  Sultans  were  generally  weak.  Mahumed  II^ — 1808- 
1^39 — exhibited  more  vigor  and  in  1828  destroyed  the  rebel- 
lious Janissaries,  who  had  so  often  disturbed  the  peace  of 
the  capital  and  dictated  terms  to  the  Sultan  and  his  ministers. 
With  the  growth  of  the  power  of  Russia  that  of  Turkey  has 
correspondingly  waned.     The  evils  of  its  despotic  system  and 


.      TURKEY  271 

the  blighting  influence  of  its  narrow  fanaticism  have  pre- 
vented that  development  and  progress  which  has  been  so  gen- 
eral in  Europe,  and  instead  of  its  position  as  the  first  power 
in  the  time  of  Suleyman,  it  is  now  looked  upon  as  one  of  the 
weakest  and  worst  governed  nations  of  Europe.  Neverthe- 
less modern  ideas  are  permeating  the  empire.  In  1876  a 
liberal  constitution  was  promulgated,  but  not  given  effect. 
On  July  24,  1908,  after  a  bloodless  revolution  the  constitution 
of  1876  was  restored.  Turkey's  European  possessions  have 
been  repeatedly  curtailed  and  in  191 2  Italy  had  forcibly  taken 
a  part  of  her  African  possessions,  and  the  allied  Balkan  states 
and  Greece  have  waged  successful  war  and  inflicted  crushing 
defeats  on  her,  further  curtailing  her  hold  on  Europe. 

Prior  to  the  revolution  of  1908  the  governmental  system  of 
Turkey  was  a  theocratic  despotism,  hereditary  in  the  family 
of  Osman.  The  Sultan  is  still  the  spiritual  head  of  the  Moslem 
world,  but  under  the  new  constitution  his  temporal  power  is 
that  of  a  constitutional  monarch.  A  ministry  responsible  to 
the  Turkish  parliament,  instead  of  to  the  Sultan,  has  been 
established.  The  grand  vizier,  named  by  the  Sultan,  pre- 
sides over  the  council  of  ministers,  which  is  made  up  of  the 
Sheik-ul  Islam  and  the  ministers  of  home  and  foreign  affairs, 
war,  finance,  marine,  commerce  and  public  works,  justice, 
public  instruction,  evkof,  grand  master  of  ordnance  and 
president  of  the  council  of  state.  The  Sheik-ul  Islam  is  the 
head  of  the  Ulema  and  representative  of  the  Moslem  Hier- 
archy, being  nominated  by  the  Sultan  with  the  approval  of 
the  Ulema,  the  general  body  of  doctors  of  Mohammedan  law. 
The  importance  of  the  religious  establishment  is  disclosed  by 
the  vast  possessions  of  the  mosques  and  the  fact  that  all  the 
Moslem  schools  are  connected  with  the  mosques,  and  the 
government  through  the  minister  of  public  instruction  and 
board  of  censors  exercises  a  censorship  over  all  the  books  used 
and  branches  taught  in  the  schools.  This  censorship  has  at 
times  also  been  extended  to  the  Christian  schools  in  Armenia 
and  elsewhere,  and  the  use  of  books  inculcating  doctrines 
deemed  dangerous  has  been  suppressed.  The  minister  of 
evkof  is   at  the  head   of   the  department   having  charge   of 


272  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

property  held  by  the  mosques  either  for  reHgious  uses  or  in 
trust  in  whole  or  in  part  for  uses  declared  by  the  donors.     It 
is  estimated  that  between  one-third  and  one-half  of  all  the 
property  in  the  empire  is  held  by  the  mosques.     The  admin- 
istration of  the  mosque  revenues  and  the  execution  of  the 
various  trusts  on  which  much  of  the  property  is  held  render 
the  department  of  evkof  one  of  the  most  important  of  the 
government.     For  administrative  purposes  the  empire  is  di- 
vided into  vilayets  (provinces),  over  which  a  vali  (governor), 
is  appointed.    These  are  divided  into  sanjaks  or  mutessariks, 
which  are  subdivided  into  kasas,  which  are  again  subdivided 
into  nahies.    The  chief  officers  under  the  valis  are  styled  re- 
spectively mutessarifliks,  kaimakams  and  mudirs.     The  valis 
and  nmtessarifs  bear  the  title  of  pasha,  and  all  but  the  mudirs 
are  appointed  from  Constantinople.     These  are  named  by  the 
valis.     All  these  officers  exercise  both  judicial  and  executive 
functions  and,  except  the  mudirs,  are  mostly  chosen  from  a 
place  other  than  that  where  they  rule.     Each  of  them  has  a 
council,  composed  of  members  of  the  different  communities, 
with  whom  he  advises  as  to  matters  of  detail.    The  character 
of  the  local  administration  is  directly  dependent  on  the  char- 
acter and  capacity  of  the  vali,  who  is  a  local  autocrat.     The 
collection  of  the  revenue  is  farmed  out  to  the  highest  bidder, 
a   system  always   productive   of   oppression   and   dishonesty. 
The  authority  of  the  different  officials  is  without  definite  limi- 
tations and  naturally  is  irregularly  and  oppressively  exercised. 
No  efficient  system  of  checking  the  accounts  of  officials  who 
handle  the  public  revenue  exists,  and  the  Turkish  officials  are 
generally  rated  as  corrupt  and  avaricious.    The  Moslem  popu- 
lation is  of  course  wholly  subject  to  the  official  system  above 
outlined,  but  foreigners  settled  in  the  country  are  by  treaty 
stipulations  exempted  from  the  jurisdiction  of  the  local  courts, 
and  cases  between  themselves  are  heard  before  the  consuls  of 
their  respective  governments.     Cases  between  a  Turk  and  a 
forigner  are  heard  before  a  mixed  court.     Before  the  revolu- 
tion military  service  was  compulsory  only  on  Moslems.     It  is 
now  compulsory  on  all  Ottomans.     There  are  many  schools 
maintained  in  the  Christian  communities  of  the  Greeks,  Ar- 


TURKEY  273 

menians  and  Syrians,  some  of  which  afford  a  good  range  of 
studies  when  not  restricted  by  the  censorship,  which  the  fan- 
atical Moslems  at  times  exercise. 

Under  the  early  caliphs  the  schools  were  not  merely  for 
the  purpose  of  propagating  a  knowledge  of  the  Koran,  but 
there  was  an  unrestrained  desire  for  improvement  in  the 
knowledge  and  use  of  language  and  of  the  sciences.  Much 
was  borrowed  from  Greeks  and  Romans,  and  while  the 
superiority  of  the  Koran  over  all  other  theological  teachings 
was  maintained,  the  search  after  truth  outside  its  covers  was 
stimulated  rather  than  suppressed,  but  from  the  tenth  century 
the  orthodox  Sunnites,  who  still  maintain  their  ascendency  in 
Turkey,  have  most  successfully  inculcated  profound  rever- 
ence for  the  established  faith  and  stifled  all  tendencies  to 
freedom  of  thought  and  original  investigation.  The  princi- 
pal school  of  Turkey  is  the  University  of  Constantinople. 
Most  of  the  students  are  said  to  come  from  the  poorer  classes, 
and  enter  this  school  after  having  received  primary  instruction 
in  the  local  schools  sufficient  to  enable  them  to  read,  write, 
count,  and  repeat  the  Koran.  They  are  first  taught  classical 
Arabic  grammar  and  then  the  dogmas  of  Islam.  The  Koran, 
traditions  of  the  Prophet  and  the  Sunna  are  expounded  by  the 
teachers,  and  the  pupil  is  given  some  instruction  in  the  prin- 
ciples of  government  as  administered  in  the  courts.  On  con- 
clusion of  his  course  the  scholar  goes  out  with  his  certificate 
to  find  a  place  as  a  teacher,  preacher,  cadi  or  mufti  or  in  some 
other  governmental  post.  The  great  corporation  of  the 
Ulema,  of  which  he  has  become  a  part,  is  usually  able  to  find 
him  a  place  without  difficulty,  for  there  are  not  nearly  enough 
graduates  to  fill  all  the  positions.  The  purely  religious  offices 
of  imam  or  khatib  are  not  given  exclusively  to  students  and  do 
not  confer  a  place  in  the  hierarchy  or  special  social  status,  but 
the  cadi,  local  judge,  receives  his  appointment  from  the  gov- 
ernment and  is  a  person  of  importance.  In  every  place  of 
any  importance  there  is  at  least  one  cadi,  who  tries  and  decides 
all  causes.  From  his  decision  an  appeal  lies  to  the  mufti,  who 
reviews  the  questions  of  law  only.  These  officers  are  to  some 
extent  independent  of  the  central  authority,  and  the  spirit  of 


274  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

religious  zeal  and  common  interest,  added  to  the  great  local 
influence  gained  by  them  by  reason  of  their  superior  learning 
and  judicial  functions,  renders  the  Ulema  a  power  which  no 
Sultan  has  ever  been  able  to  ignore.  It  was  a  powerful  factor 
in  the  revolution  of  1908. 


CHAPTER  XIII 


Greece 


We  know  the  Greeks  better  than  any  other  ancient  people 
besides  the  Hebrews,  mainly  because  more  of  their  literature 
and  of  the  records  of  their  doings  have  come  down  to  us 
than  from  any  other.  Their  language  was  the  vehicle  through 
which  we  received  the  new  testament,  and  their  culture  has 
been  preserved  and  transmitted  to  us  in  many  ways.  Though 
few  in  numbers  at  all  times  and  operating  in  a  limited  field, 
their  intellectual  activities  were  such  that  their  works  are  still 
worthy  of  close  study  and  full  of  instruction.  In  govern- 
ments and  laws  they  furnish  experiments  on  a  small  scale  of 
many  schemes  of  social  organization.  Unlike  their  oriental 
neighbors,  they  adhered  to  no  beaten  path  but  were  full  of 
originality  and  invention.  No  religious  creed  enjoined  loy- 
ally to  a  particular  form  of  government  or  imposed  its  laws 
on  them.  No  ruler,  prior  to  Alexander,  was  able  to  establish 
his  authority  over  all. 

Though  much  of  tradition  and  more  of  fable  concerning 
the  early  inhabitants  of  Greece  have  come  down  to  us,  it  is 
sufficient  for  our  purpose  to  know  that  in  the  earliest  times, 
concerning  which  we  have  any  light,  there  were  movements 
of  people  from  northern  Asia  Minor  into  Greece  and  that 
Phoenician  traders  settled  on  the  coast.  While  Homer  writes 
of  kings,  and  the  Greek  traditions  name  early  kingdoms,  the 
extent  of  each  was  so  small  that  the  name  seems  illy  fitted. 
The  characteristics  of  the  early  organizations  are  analogous 
to  those  of  tribes  rather  than  states.  The  king  was  a  chief, 
whose  authority  was  fixed  partly  by  custom  and  partly  by 
personal  capacity  to  lead. 

The  most  marked  peculiarity  of  the  development  of  the 
early  Greek  societies  was  the  tendency  to  segregation  and  to 
build  cities.     Not  only  in  Greece  proper  but  throughout  the 

2/5 


276  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Greek  islands,  the  coast  settlements  in  Asia  Minor  and  on 
the  continent  of  Europe,  each  settlement  developed  its  city  of 
more  or  less  size,  with  so  much  adjacent  land  as  was  neces- 
sary for  its  support,  and  maintained  its  petty  government, 
independent  of  every  other  city  or  state.  Though  the  form 
of  government  was  in  the  earliest  times  usually  monarchical, 
most  of  the  petty  kings  were  content  to  rule  over  single  cities 
and  rarely  attempted  conquests  beyond  the  lands  used  by  their 
people.  The  desire  to  hold  other  cities  by  force  seems  to  have 
been  almost  unknown,  though  there  were  instances  of  the  ex- 
action of  tribute.  The  island  of  Crete  may  be  mentioned  as 
an  exception.  The  authority  of  Minos  and  other  of  its  kings 
is  said  to  have  extended  over  the  whole  island,  and  the  ro- 
mantic tale  of  Theseus  relates  that  Athens  was  forced  to  pay 
tribute  to  Minos  until  Theseus  liberated  it.  How  much  of  his- 
tory and  how  much  of  fable  is  contained  in  accounts  of  these 
persons  it  is  impossible  to  determine. 

In  the  early  Greek  communities  the  king  consulted  the  elders 
in  matters  of  public  interest,  and  matters  of  first  importance 
were  submitted  to  and  decided  by  a  popular  assembly.  Poly- 
gamy was  not  allowed,  but  slavery  existed  from  the  earliest 
times  till  the  subjugation  by  the  Romans.  As  our  accounts 
of  the  first  Greeks  come  through  themselves,  it  necessarily 
follows  that  the  record  starts  with  a  people  considerably  ad- 
vanced in  knowledge  and  the  arts.  That  much  of  their 
culture  was  borrowed  is  conceded,  and  credit  is  given  the 
Phoenicians  for  their  alphabet. 

Sparta 

The  most  peculiar  and  enduring  government  was  that  de- 
veloped at  Sparta.  The  early  Dorian  settlements  in  the  mid- 
dle valley  of  the  Eurotas  in  Laconia,  forming  a  cluster  of 
villages,  developed  into  the  Spartan  state.  When  these  set- 
tlements were  first  made  and  just  what  comprised  the  king- 
dom of  Agamemnon,  whose  fame  may  rest  far  more  on  the 
vivid  imagination  of  Homer  than  on  historic  facts,  is  un- 
known. The  historic  period  is  generally  regarded  as  dating 
from  the  time  of  Lycurgus,  about  900  B.C.     The  elements 


GREECE  2.^^ 

making  up  the  Spartan  state  were,  i,  The  Citizens,  who 
were  Dorians,  2,  The  Perioeci,  who  dweU  about  the  city  in 
Laconia  and  were  landholders,  but  given  no  voice  in  the  gov- 
ernment, and  3,  The  Helots,  who  were  serfs  of  the  state, 
bound  to  the  soil  and  compelled  to  till  it  for  the  Spartan  own- 
ers, to  whom  they  were  forced  to  yield  a  large  share  of  the 
entire  produce.  These  were  allowed  to  have  families,  could 
not  be  sold  out  of  the  country  and  fought  in  the  wars. 

At  the  head  of  the  state,  though  with  little  real  power,  were 
two  hereditary  kings,  who  commanded  the  armies  in  war. 
The  council  of  elders  {gerousia  or  senate),  was  made  up  of 
twenty-eight  members,  elected  by  the  people  from  amongst  the 
citizens  over  sixty  years  of  age,  who  then  held  for  life,  and 
the  two  kings,  making  in  all  thirty.  The  senate  formulated 
public  measures  and  submitted  them  to  the  general  assembly 
of,  the  people  for  approval  or  rejection.  It  was  also  the  great 
court  of  justice.  The  institution  of  the  Ephors  is  said  to  have 
been  established  after  the  time  of  Lycurgus.  They  were  five 
in  number,  elected  annually  by  the  people,  and  had  authority 
to  call  all  public  officers,  even  the  kings,  to  an  account.  It 
was  they  who  had  power  to  make  war  or  peace,  and  in  time 
they  came  to  be  the  chief  power  in  the  state.  The  main 
design  of  the  people  was  to  restrain  the  power  of  the  kings 
through  the  Ephors. 

The  central  idea  of  all  the  Spartan  institutions  was  mili- 
tary. A  Spartan  citizen  had  nothing  to  do  with  any  trade  or 
industrial  occupation.  The  Perioeci  and  Helots  performed  all 
the  labor  of  the  state.  The  Spartan  was  raised  a  soldier,  and 
from  childhood  subjected  to  exercises  and  training  calculated 
to  develop  physical  strength  and  endurance  as  well  as  courage 
and  military  discipline.  Girls,  who  were  to  be  the  mothers 
of  soldiers,  were  trained  similarly  and  exercised  in  running, 
wrestling,  boxing  and  throwing  quoits  and  darts.  The  mili- 
tary spirit  was  inculcated  in  the  females,  and  they  became  the 
censors  of  the  actions  of  the  soldiers.  There  was  great 
freedom  of  association  of  males  and  females  among  the 
young,  and  nowhere  else  among  Greeks  were  women  treated 
with  such  high  respect. 


278  EVOLUTION  OF  GOVERN MIENTS  AND  LAWS 

A  peculiar  feature  of  Spartan  life  was  the  public  mess,  to 
which  all  contributed  and  which  all  were  bound  to  attend,  not 
excepting  the  kings.  The  members  were  distributed  to  tables 
in  parties  of  fifteen,  selected  by  ballot.  The  fare  was  plain 
and  partaken  of  by  all  alike.  Especial  attention  was  paid  to 
the  organization  of  the  army  as  well  as  to  the  development 
of  the  individual  soldiers.  The  sole  aim  of  Spartan  policy 
being  to  develop  its  military  power,  the  moral  tone  was  neces- 
sarily low.  At  birth  the  boys  were  inspected  by  the  elders  of 
their  tribe  and,  if  found  deformed  or  puny,  were  exposed  so 
that  they  perished.  The  strong  and  sound  were  regarded,  not 
as  subject  to  the  guidance  of  their  parents,  but  of  the  state. 
They  were  early  accustomed  to  hardships  of  every  kind  for 
the  purpose  not  merely  of  giving  them  strength  and  endur- 
ance, but  also  courage  and  self-reliance.  At  the  age  of  seven 
they  were  assigned  to  classes  and  subjected  to  constant  and 
severe  discipline.  Education  did  not  lead  to  literature,  art  or 
any  useful  calling,  but  to  war  alone.  It  is  most  remarkable 
that,  with  no  application  to  any  useful  labor,  the  Spartans 
through  so  many  years  should  have  maintained  their  physical 
vigor.  Athletic  exercises  were  doubtless  very  beneficial  in 
the  main,  but  the  violent  strains  to  which  youths  were  sub- 
jected often  resulted  in  crippling  or  even  killing  them.  They 
were  also  subjected  to  cruel  beating  as  a  religious  rite,  often 
resulting  in  death.  This  was  said  to  be  for  the  purpose  of 
inuring  them  to  pain.  In  war  the  duty  of  the  soldier  was 
to  conquer  or  die.  No  circumstances  whatever  were  recog- 
nized as  allowing  surrender  or  retreat,  and  one  who  escaped 
from  a  lost  battle  was  disgraced  and  treated  by  the  whole 
community,  men,  women  and  children  as  infamous  forever 
after.  While  the  Helots  and  Perioeci  tilled  the  soil,  tended 
the  flocks  and  performed  all  useful  labor,  the  ruling  class 
were  always  dwelling  in  a  military  camp  under  strict  and  con- 
stant discipline.  Some  attention  was  paid  to  oratory  and  the 
use  of  language,  brevity  and  point  being  the  excellences 
mainly  sought.  As  the  lands  were  parcelled  out  among  the 
people,  and  no  one  was  allowed  to  engage  in  any  business  by 
which  wealth  could  be  accumulated,  there  was  of  necessity  a 


GREECE  -  279 

remarkable  equality  of  condition,  though  the  kings  were  al- 
lowed much  larger  possessions  than  the  rest.  The  Spartans 
extended  their  power  in  the  Peloponnesus  at  an  early  time, 
but  did  not  follow  a  policy  of  conquest.  The  purpose  of  their 
military  system  was  defensive  rather  than  offensive.  Not  till 
after  their  people  had  become  corrupted,  during  the  Persian 
wars,  did  they  rule  over  subjugated  communities  by  means  of 
Spartan  governors  and  garrisons.  This  was  soon  followed  by 
the  rise  of  the  Macedonian  power  under  Philip,  which  termi- 
nated the  independence  of  Sparta  as  well  as  the  other  Greek 
states.  For  more  than  500  years  this  state  maintained  its 
unique  character  and  the  integrity  of  its  institutions. 

Its  long  continuance  is  clearly  attributable  to  the  intense 
devotion  of  the  citizens  to  the  preservation  of  the  state. 
Patriotism  here  was  in  fullest  bloom.  Each  individual  deemed 
the  state  entitled  to  all  his  efforts  while  living  and  to  the 
sacrifice  of  his  life  when  necessary.  Nowhere  else  has  the 
spirit  of  self-sacrifice  been  so  constantly  maintained  or  at  so 
high  a  pitch,  yet  this  devotion  was  not  prompted  by  love  of 
man  nor  of  all  the  people  composing  the  state,  nor  of  the 
Spartan  citizens  as  individuals.  It  was  devotion  to  that  body 
of  men  of  which  the  individual  was  a  part.  To  foster  this 
spirit  parents  rejoiced  in  the  death  of  sons  who  fell  bravely 
fighting,  and  mourned  over  and  reviled  those  who  fled  in 
safety.  The  spirit  constantly  cultivated  was  one  of  hardness, 
but  long  singularly  free  from  avarice  and  selfishness.  The 
Helots  were  cruelly  treated,  even  to  systematic  assassination. 
The  natural  affections  were  stifled  to  permit  the  destruction 
of  weak  offspring.  The  system  was  rigid.  It  admitted  of  no 
great  expansion  and  aimed  at  no  intellectual  elevation,  no 
development  of  science  or  philosophy.  Its  one  sublime  ideal 
of  devotion  to  the  public  was  confined  to  the  narrow  limits  of 
Sparta  and  not  only  wanting  in  love  for  others,  but  its  high- 
est purpose  was  the  overthrow  of  enemies  in  battle. 

In  order  to  preserve  the  integrity  of  his  system,  Lycurgus, 
Sparta's  great  law-giver,  prohibited  foreign  travel,  except  in 
the  interest  of  the  state,  and  excluded  all  foreigners,  and 
foreign  commerce  as  well,  from  the  city.    To  maintain  equality 


28o  EVOLUTION  OF  GOVERNMENTS  AND  lI\WS 

he  perpetuated  poverty.  Children  were  regarded  as  children 
of  the  state,  and  the  boys  were  raised  together  under  a  train- 
ing which  inculcated  craft  and  courage.  Their  clothing  was 
scanty,  and  at  the  age  of  twelve  they  were  deprived  of  all 
but  a  single  upper  garment  a  year.  For  beds  they  were  al- 
lowed to  gather  reeds,  and  slept  together  in  companies.  The 
command  of  the  companies  was  given  to  a  youth  who  had 
been  two  years  out  of  his  class,  chosen  by  an  inspector.  A 
principal  business  of  the  elders  was  watching  the  conduct  of 
the  boys  and  giving  them  instruction.  Modesty  in  the  modern 
sense  was  not  esteemed  a  virtue.  At  certain  festivals  and 
games  the  young  of  both  sexes  appeared  in  scanty  costume  in 
the  presence  of  each  other  and  of  the  elders,  but  all  were 
required  to  conduct  themselves  with  strict  decency  and  de- 
corum in  all  respects.  The  marriage  custom  was  a  forcible 
carrying  off  of  the  bride,  and  the  newly  married  pair  were  not 
allowed  to  remain  together,  but  only  to  meet  each  other  by 
stealth.  It  was  deemed  honorable  for  a  feeble  husband  to 
allow  his  wife  to  have  children  by  a  man  of  superior  qualities. 
It  was  believed  that  this  tended  to  the  production  of  better 
offspring.  Marriage  was  so  far  compulsory  that  an  old 
bachelor  was  in  disgrace,  while  the  father  of  children  was 
honored. 

Three  fundamental  laws  declared  by  Lycurgus  are  men- 
tioned. I.  Not  to  resort  to  written  laws.  2.  Not  to  employ 
in  housebuilding  any  other  tools  than  the -axe  and  saw.  3.  Not 
to  undertake  military  expeditions  often  against  the  same 
enemy. 

Capital  offenses  were  tried  before  the  senate,  others  by  the 
ephors  separately  or  all  together.  There  being  no  written 
laws,  judgment  was  given  in  accordance  with  the  sentiments 
of  the  judge  as  to  the  merits  of  the  particular  case.  The 
simplicity  of  the  Spartan  society  and  the  absence  of  all  com- 
merce with  the  outside  world  afforded  no  basis  for  an  elabo- 
rate system  of  laws. 

As  to  the  land  tenure,  although  Plutarch  states  that  Lycur- 
gus divided  the  land  into  9,000  shares  for  Spartan  citizens 
and  30,000  shares  throughout  Laconia  for  the  other  inhabi- 


GREECE  281 

tants,  modern  critics  discredit  the  statement.  Nor  can  any 
very  definite  statement  of  the  law  of  inheritance  be  made. 
There  were  inequaUties  of  possessions  among  the  people  and 
recognized  titles  to  land.  It  was  from  the  produce  of  their 
estates  alone  that  the  Spartan  citizens  furnished  their  quotas 
to  the  public  tables.  Whenever  one  became  too  poor  to  con- 
tribute his  share,  he  lost  his  citizenship. 

The  military  organization  started  with  the  enomoty,  con- 
sisting of  from  twenty-five  to  thirty-six  men  of  about  the 
same  age  under  a  leader.  Two  to  four  of  these  were  com- 
bined into  a  Pentecosty,  of  which  two  to  four  formed  a 
Lochus  and  the  Mora  contained  400  to  900  men.  The  mili- 
tary superiority  acquired  by  the  Spartans  through  their  sys- 
tem not  only  secured  their  independence,  but  gained  for  them 
a  predominating  influence  among  all  the  petty  Greek  states, 
which  they  retained  until  the  Persian  war.  There  was  a  con- 
stant tendency  however,  for  the  number  of  citizens  to  dimin- 
ish, so  that  in  the  time  of  Aristotle  there  were  only  about 
1000.  This  is  attributed  to  the  gradual  concentration  of  the 
title  to  the  land  in  a  few  hands.  No  other  Greek  state  main- 
tained the  integrity  of  its  social  organization  so  long,  but, 
like  every  other  rigid  system  which  contained  no  provision 
for  changing  conditions,  in  time  it  lost  its  early  spirit  and.  at 
the  same  time  shut  out  the  invigorating  influences  of  contact 
with  the  outer  world  and  that  spontaneous  growth,  which  can 
only  come  rapidly  under  conditions  which  invite  new  inspira- 
tions. Advancement  comes  with  new  ideals,  and  to  continue 
the  ideals  must  advance  as  the  people  move  up.  Mere  perma- 
nency of  institutions  or  conditions  evidences  stagnation,  rather 
than  a  full  and  glorious  life  of  progress. 

Athens 

The  history  of  Athens  appears  mythical  and  uncertain  till  a 
later  date  than  that  ascribed  to  the  establishment  of  the  Spar- 
tan system.  The  early  Ionian  people  of  Attica  were  divided 
into  four  tribes  and  these  again  into  Phratries  and  Gentes. 
Each  gens  was  composed  of  a  number  of  households  not,  it 
is  said,  necessarily  all  related  to  each  other  by  blood,  but 


282  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

bound  together  by  religious  ties,  proximity  of  possessions  and 
mutual  dependence  in  protecting  common  interests.  These 
divisions  were  mainly  religious  and  social.  Besides  these  each 
tribe  was  divided  politically  into  three  Trettys,  and  each 
Tretty  included  four  Naukraries.  Prior  to  the  time  of  The- 
seus there  was  no  central  authority  in  Attica,  each  small  town 
maintaining  its  independence.  Theseus,  who  has  been  in- 
vested by  Greek  imagination  with  heroic  virtues  and  mythical 
adventures,  appears  to  be  a  genuine  historic  character  and  to 
have  first  established  the  ascendency  of  Athens  over  Attica 
and,  if  any  credit  can  be  given  to  the  tale  of  his  adventures 
in  Crete,  he  relieved  the  people  from  the  payment  of  tribute  to 
King  Minos.  There  is  so  little  rehable  history  of  Athens 
prior  to  about  750  B.C.  that  nothing  can  be  safely  built  on  it. 
Codrus  is  said  to  have  been  the  last  who  was  permitted  to  be 
called  king,  his  successors  being  styled  archofis  and  holding 
office  for  life  till  Alkmaeon,  when  the  term  of  office  was 
reduced  to  two  years.  This  continued  for  seventy  years, 
when  the  office  was  made  annual,  with  nine  archons  among 
whom  the  powers  were  distributed.  Down  to  714  B.C.  the 
archons  were  all  descendants  of  Medon  and  Codrus,  but  after 
that  date  any  of  the  eupatrids  or  nobles  became  eligible.  At 
the  expiration  of  his  term  of  office  the  archon  whose  adminis- 
tration was  approved  became  a  life  member  of  the  senate  of 
the  Areopagus.  The  functions  of  this  body  were  both  ju- 
dicial and  political.  The  archons  were  not  of  equal  authority. 
At  the  head  was  the  Archon  Eponymous,  who  determined  all 
disputes  relative  to  the  family  and  relations  in  the  gens  and 
phratry,  and  was  guardian  of  widows  and  orphans.  He  was 
styled  the  Archon,  and  from  his  name  the  year  was  desig- 
nated in  their  chronology.  The  Archon  Basileus  heard  com- 
plaints respecting  offenses  against  religion  and  also  of 
homicides.  The  Polemarch  was  the  general  and  judge  of  dis- 
putes between  citizens  and  non-citizens.  Each  of  these  con- 
ducted certain  religious  festivals.  The  remaining  six,  styled 
Thesmothetae,  had  general  jurisdiction  of  other  matters  of 
dispute.  In  624  B.C.,  Draco,  then  one  of  the  archons,  was 
directed  to  put  the  laws  in  writing,  so  that  they  might  be 


GREECE  283 

shown  and  known  beforehand.  The  famed  Draconian  code 
was  not  new  laws  made  by  him,  but  old  ones  reduced  to  writ- 
ing. Its  severity  has  often  been  remarked,  but  so  little  of  it 
has  been  preserved  that  its  contents  cannot  be  given  or  even 
summarized.  It  was  in  his  time  that  the  judges,  called  Ephe- 
tae,  made  up  of  fifty-one  elders  of  leading  gentes,  were  es- 
tablished with  power  to  judge  in  certain  cases  of  homicide. 
They  sat  in  three  different  places,  according  to  the  nature  of 
the  charge  and  defense,  and  were  permitted  to  pass  a  sentence 
less  than  death  according  to  the  justification  or  excuse, 
whereas  it  is  said  that  the  Areopagus  could  only  condemn  to 
death.  Peculiar  religious  ideas  connected  with  the  different 
places  seem  to  have  produced  this  system.  The  constitution 
of  such  a  variety  of  courts  for  trial  of  homicides  would  seem 
to  indicate  a  great  number  of  such  offenses.  About  612  B.C. 
Cylon  seized  the  Acropolis  and  attempted  to  estabhsh  himself 
as  tyrant,  but  failed  miserably  and  many  of  his  followers 
were  slain,  some  at  the  sanctuaries. 

At  the  time  of  Solon  the  record  becomes  more  clear,  and 
we  have  a  more  satisfactory  account  of  the  Athenian  state. 
Plutarch  tells  us  that  in  Solon's  time  there  were  great  dis- 
orders in  the  state.  Cylon's  attempted  usurpation  and  the 
slaughter  of  his  followers  in  the  sanctuaries  left  bitter  factions 
and  aroused  superstitious  fears.  But  more  deep-seated  were 
the  troubles  arising  from  the  conditions  of  the  people  and 
their  different  views  of  government.  He  says,  'The  inhabi- 
tants of  the  mountainous  part  were,  it  seems,  for  a  dem- 
ocracy; those  of  the  plain  for  an  oligarchy;  and  those  of  the 
sea  coasts  contending  for  a  mixed  kind  of  government,  hin- 
dered the  other  two  from  gaining  their  point.  At  the  same 
time  the  inequality  between  the  poor  and  the  rich  occasioned 
the  greatest  discord,  and  the  state  was  in  so  dangerous  a 
situation  that  there  seemed  to  be  no  way  to  quell  the  seditions 
or  to  save  it  from  ruin  but  changing  it  to  a  monarchy."  Of 
the  poor  debtors  some  were  made  slaves,  some  sold  to  foreign- 
ers, others  sold  their  children.  The  greater  number  determined 
to  resist  this  oppression.  Solon  was  of  the  eupatrid  order  and 
had  gained  great  reputation  and  the  confidence  of  all  classes 


284  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

as  a  soldier  and  a  citizen.  He  was  made  archon  in  594  B.C. 
and  given  authority  to  reform  the  laws  and  remodel  the  gov- 
ernment. He  repealed  the  peual  laws  of  Draco,  except  those 
concerning  homicide,  because  of  their  severity,  idleness  and 
petty  larceny  having  been  punishable  with  death.  A  more 
difficult  question  to  deal  with  was  that  of  the  oppression  of 
the  poor  by  rich  creditors  through  harsh  laws  harshly  enforced 
by  the  wealthy  class,  who  held  all  judicial  offices.  Not  only 
were  most  of  the  small  estates  mortgaged,  which  was  done 
by  setting  up  a  stone  on  the  land  inscribed  with  the  name  of 
the  mortgagee  and  the  amount  of  the  debt,  but  the  creditor 
might  take  the  body  of  his  debtor  as  security  and  in  default 
of  payment  enslave  or  sell  him.  Against  this  system  and  the 
merciless  and  unjust  enforcement  of  it  the  poor  clamored  for 
relief. 

The  difficulties  experienced  by  the  eupatrids  in  maintaining 
order  and  enforcing  the  rights  of  creditors  seems  to  have  in- 
duced them  to  accord  Solon  the  ample  power  he  was  given 
to  reforrh  the  laws,  he  being  one  of  their  own  order.  The 
poor  also  clamored  for  an  equal  division  of  the  lands.  This 
Solon  denied  them,  but  he  gave  sweeping  relief  to  the  debtors. 
He  released  all  mortgages  and  removed  all  the  mortgage 
pillars  from  the  land.  He  discharged  all  debtors,  whose 
bodies  were  pledged  as  security,  from  their  debts,  released  the 
debtors  who  had  been  enslaved,  and  even  bought  back  others 
who  had  been  sold  out  of  the  country.  He  prohibited  debtors 
from  thereafter  pledging  their  persons  as  security,  and  also 
forbade  them  from  pledging  or  selling  their  children  or  un- 
married sisters.  For  the  relief  of  the  other  debtors,  for  whom 
no  such  security  was  given,  he  provided  that  the  minae,  which 
before  went  for  seventy-three  drachmas,  should  go  for  100 
thereafter,  thereby  relieving  debtors  by  increasing  the  legal 
value  of  the  coins.  Citizens  who  had  been  disfranchised,  ex- 
cept those  condemned  by  the  areopagus  or  ephetae  or  in  the 
prytaneum  for  murder  robbery  or  treason,  were  restored  to 
their  former  privileges. 

It  was  in  remodelling  the  official  system  that  Solon's  work 
produced  the  most  lasting  though  not  the  greatest  immediate 


GREECE  285 

effect.  He  began  by  a  new  classification  of  the  citizens  based 
on  incomes.  Those  having  annual  incomes  of  500  measures 
in  wet  and  dry  goods,  took  first  rank  and  were  called  Pentcu- 
cosiomedimini.  Those  having  between  300  and  500  measures 
were  put  in  the  second  class  or  equestrian  order.  Those  hav- 
ing 200  to  300  constituted  the  third  class,  and  all  whose  in- 
comes were  less  were  placed  in  the  fourth  class.  The  first 
class  alone  were  eligible  to  the  archonship  and  military  com- 
mands. The  second  were  the  horsemen,  the  third  the  heavy 
armed  infantry.  These  three  classes  were  subject  to  direct 
taxes  on  the  value  of  their  possessions  by  a  graduated  system 
of  valuation,  having  the  effect  to  increase  the  rate  according 
to  the  size  of  the  estate.  The  fourth  class  were  not  subject 
to  direct  taxation,  and  were  not  eligible  to  office,  but  they 
were  given  what  in  time  proved  to  be  a  most  important  right, 
that  of  sitting  and  voting  in  the  general  assembly.  They 
chose  the  archons  from  the  first  class  and  on  the  expiration 
of  their  terms  passed  judgment  on  their  conduct,  and  might 
debar  them  from  taking  seats  in  the  senate  of  the  Areopagus. 
He  also  established  a  senate  of  400  members,  made  up  of 
100  elected  by  the  people  from  each  of  the  four  tribes.  All 
citizens,  except  those  of  the  poorest  class,  were  eligible  to  the 
senate.  The  senate  considered  and  formulated  matters  to  be 
submitted  to  the  general  assembly,  convoked  and  superintended 
its  meetings  and  executed  its  decrees.  The  old  senate  of  the 
Areopagus,  made  up  of  past  archons  whose  conduct  was  ap- 
proved, was  retained  and  given  enlarged  powers  over  the 
execution  of  the  laws  and  the  punishment  of  men  of  idle  and 
dissolute  habits.  The  laws  of  Solon  were  inscribed  on  wooden 
tables,  which  might  be  turned  round  in  the  oblong  cases  that 
contained  them.  Plutarch  says  some  of  them  were  still  pre- 
served in  the  Prytaniiim  in  his  time.  Solon  forbade  the  ex- 
portation of  all  agricultural  produce  except  olive  oil.  The 
archons  were  required  to  solemnly  curse  such  as  violated  the 
law.  He  allowed  only  such  immigrants  to  become  citizens  as 
came  to  reside  at  Athens  permanently  and  for  the  purpose  of 
carrying  on  some  useful  calling.  If  a  father  failed  to  teach 
his  son  a  trade  or  profession,  the  son  was  under  no  legal 


286  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

obligation  to  support  him  in  old  age.  As  the  people  of  At- 
tica had  to  resort  to  wells  for  water,  he  provided  that,  where 
there  was  a  public  well,  all  within  four  furlongs  should  make 
use  of  it,  but  if  the  distance  was  greater  they  must  dig  for 
themselves.  If  after  digging  ten  fathoms  they  found  no  water, 
they  might  fill  a  vessel  of  six  gallons  twice  a  day  at  a  neigh- 
bor's well.  He  that  planted  a  tree  on  his  ground  was  to  place 
it  five  feet  from  the  line,  and  if  a  fig  or  olive,  nine,  because 
of  the  length  of  its  roots.  He  that  dug  a  pit  or  a  ditch  was 
required  to  dig  it  as  far  from  his  neighbor's  land  as  it  was 
deep.  Bees  were  required  to  be  kept  three  hundred  feet  from 
those  of  a  neighbor.  Plutarch  says,  'The  most  peculiar  and 
surprising  of  the  laws  is  that  which  declares  the  man  in- 
famous who  stands  neuter  in  time  of  sedition.  It  seems  he 
would  not  have  us  be  indifferent  and  unaffected  with  the  fate 
of  the  public,  when  our  own  concerns  are  upon  a  safe  bot- 
tom, nor  when  we  are  in  health  be  insensible  to  the  distempers 
and  griefs  of  our  country.  He  would  have  us  espouse  the 
better  and  juster  cause  and  hazard  everything  in  defense  of 
it,  rather  than  wait  in  safety  to  see  which  side  the  victory  will 
incline  to."^  In  all  marriages  except  those  of  heiresses  he 
prohibited  the  giving  of  dowries  and  allowed  the  bride  to 
bring  with  her  only  three  suits  of  clothes  and  a  little  house- 
hold stuff.  This  included  an  earthen  pan  for  parching  barley, 
which  symbolized  her  assumption  of  the  charge  of  the  house- 
hold. The  bride  and  groom  were  directed  to  be  shut  up  to- 
gether and  to  eat  of  the  same  quince.  One  of  the  laws 
forbade  men  to  speak  ill  of  the  dead.  He  also  forbade  reviling 
the  living  in  a  temple,  a  court  of  justice,  the  general  assembly 
or  at  the  public  games.  Offenses  of  this  kind  were  punished 
by  a  mulct  of  three  drachmas  to  the  person  injured  and  two 
to  the  public.  He  introduced  the  making  of  wills,  but  re- 
stricted the  right  to  those  dying  without  children.  He  re- 
stricted extravagance  at  funerals  and  prohibited  women  from 
tearing  themselves,  and  no  hired  mourner  was  allowed  to 
utter  lamentable  notes  or  do  anything  else  to  excite  sorrow. 
All  citizens  were  required  to  attend  the  public  entertainments, 

'  I   Plutarch,  p,   185. 


GREECE  287 

but  prohibited  from  going  too  often.  The  victor  at  the  Isth- 
mian games  was  allowed  a  reward  of  100  drachmas  and  at  the 
Olympian  500  drachmas.  There  was  a  reward  of  five  drach- 
inas  for  catching  a  he  wolf  and  one  for  a  she  wolf,  the 
former  being  the  price  of  an  ox  and  the  latter  of  a  sheep. 
The  full  text  of  Solon's  code  is  not  preserved.  The  fragments 
above  mentioned  indicate  something  of  its  general  tenor. 
After  his  laws  were  promulgated,  the  senate  and  archons 
were  sworn  to  observe  the  laws  under  penalty  of  a  golden 
statue  as  large  as  life,  to  be  erected  at  Delphi.  This  seems 
to  have  been  the  only  sanction  they  received.  Having  com- 
pleted his  labors,  Solon  found  it  too  severe  a  task  to  defend, 
construe  and  explain  his  own  work,  and  thereupon  obtained 
leave  of  absence  for  ten  years,  during  which  the  laws  were 
to  remain  unchanged. 

Solon's  system  appears  to  have  been  insufficient  to  prevent 
internal  discord,  for  after  his  return  the  people  again  divided 
into  much  the  same  factions  as  before,  the  mountaineers  under 
Pisistratus,  the  rich  of  the  plains  under  Lycurgus  and  those 
of  the  sea  coast  under  Megacles.  Pisistratus,  under  the  pre- 
tense that  he  had  been  assaulted,  obtained  leave  to  keep  a 
body  guard  of  fifty  armed  with  clubs.  This  Solon  opposed 
but  without  success.  Thereafter  Pisistratus  seized  the  Acrop- 
olis and  succeeded  in  establishing  his  authority.  His  dynasty, 
established  560  B.C.,  continued  fifty  years,  with  two  intervals 
however,  during  which  he  was  driven  into  exile.  Accounts  of 
his  reign  and  that  of  his  sens  are  meagre,  but  concur  in  as- 
serting that  he  ruled  largely  through  the  forms  which  Solon 
had  established  and  with  mildness.  After  Hipparchus,  son  of 
Pisistratus,  was  killed  by  Harmodius  and  Aristogiton,  the 
reign  of  Hippias  his  brother  was  harsh  and  cruel. 

For  favors  received  from  the  Alkmoenids,  who  had  been 
driven  into  exile  by  Pisistratus,  in  rebuilding  the  temple,  the 
Delphic  oracle  played  on  the  superstitious  reverence  of  the 
Spartans,  and  in  answer  to  every  consultation  said,  that 
"Athens  must  be  liberated."  The  Spartan  reverence  for  the 
deity  supposed  to  preside  at  the  temple  at  length  caused  them 
to  send  an  army  to  Athens  to  drive  out  the  tyrant.     The  first 


288  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

expedition  proved  unsuccessful,  but  the  second  accomplished 
the  object  and  finally  expelled  the  tyrant.  This  circumstance 
strongly  illustrates  the  peculiar  notions  of  the  Greeks  of  that 
day.  By  this  expedition  the  Spartans  merely  performed  what 
they  deemed  the  religious  duty  of  liberating  their  great  rival 
from  a  tyrant,  from  w^hich  they  derived  no  material  advant- 
ages, but  suffered  some  losses  of  men.  After  the  expulsion 
of  the  Pisistratids  the  institutions  of  Solon,  which  had  not 
been  destroyed  but  used  by  them  as  means  for  the  execution 
of  their  purposes,  were  restored  to  vitality  with  modifications 
introduced  by  Cleisthenes,  who  allied  himself  with  the  classes 
which  had  formerly  been  excluded  wholly  or  partially  from 
sharing  in  the  exercise  of  |)ublic  functions.  He  extended  the 
right  of  citizenship,  which  had  been  confined  to  the  four  Ionic 
tribes,  so  as  to  include  all  freemen.  In  order  to  accomplish 
this  he  resorted  to  a  new  division  into  tribes,  which  disre- 
garded the  ancient  gentes  and  phratries.  He  divided  the  whole 
population  of  Attica  into  ten  new  tribes,  each  of  which  in- 
cluded a  certain  number  of  denies  or  cantons,  in  which  the 
proprietors  and  residents  were  enrolled.  The  demes  assigned 
to  each  tribe  were  not  all  contiguous,  and  so  a  tribe  did  not 
occupy  a  compact  territory.  This  scattering  of  the  members 
of  a  tribe  and  inclusion  of  all  classes  of  people  without  regard 
to  the  ancient  gentes  tended  strongly  to  unify  them.  The 
ancient  gentes  and  phratries  remained  as  family  and  religious 
associations,  but  without  political  significance.  City  demes 
and  country  were  included  in  the  same  tribe,  and  jealousy 
between  city  and  country  thereby  avoided.  Each  deme  had 
its  local  interests,  but  the  tribe  as  a  whole  had  no  interest 
distinct  from  that  of  the  state,  being  merely  an  aggregate  of 
demes  for  political,  military  and  religious  purposes.  Each 
tribe  had  a  chapel,  sacred  rites  and  festivals  and  a  common 
fund  for  these  purposes.  The  deme  was  the  primary  political 
aggregation.  It  had  its  demarch  who  kept  the  register  of  en- 
rolled citizens,  its  collective  property,  its  public  meetings  and 
religious  ceremonies,  and  its  taxes,  levied  and  administered 
by  itself.  The  registry  of  citizens  w^as  corrected  at  the  public 
assembly  by  inscribing  the  names  of  the  sons  of  citizens  who 


GREECE  289 

had  attained  the  age  of  eighteen.  Sometimes  names  were 
expunged  from  the  register,  in  which  case  an  appeal  could  be 
taken.  Under  the  new  arrangement  the  public  assembly  was 
greatly  increased  in  numbers,  and  the  membership  of  the  senate 
was  increased  from  400  to  500,  made  up  of  fifty  from  each 
of  the  ten  tribes,  chosen  annually.  About  this  time  the  prac- 
tice began  of  choosing  the  senators  by  lot.  The  military 
organization  was  changed  so  that  ten  strategi,  generals,  one 
from  each  tribe,  were  chosen.  This  did  not  deprive  the  pole- 
march  of  the  old  constitution  of  all  his  power,  but  the  power 
and  influence  of  the  strategi  steadily  increased.  A  board  of 
ten  ApodektaCj  one  from  each  tribe,  managed  the  exchequer. 
With  the  revival  of  popular  government  the  senate  at  once 
became  a  most  important  body,  exercising  a  general  super- 
vision of  the  affairs  of  the  city.  The  political  year  was  divided 
into  ten  portions  called  Prytanies;  the  fifty  senators  of  each 
tribe  remaining  in  constant  attendance  on  the  senate  by  turns 
during  one  prytany.  Each  prytany  was  divided  into  five 
periods  of  seven  days,  and  the  fifty  senators  of  each  tribe 
into  five  bodies  of  ten  each.  Each  body  of  ten  presided  in  the 
senate  for  a  period  of  seven  days,  choosing  by  lot  one  of 
their  number  each  day  for  the  chairman,  who  was  called 
epistates,  and  during  his  day  of  office  held  the  keys  of  the 
Acropolis,  the  treasury  and  the  city  seal.  Senators  not  of  the 
prytany  might  attend  all  sessions,  but  were  not  required  to 
do  so,  except  that  one  from  each  tribe  was  requisite  to  a 
valid  meeting.  The  general  assembly  was  convoked  either 
by  the  senate  or  the  strategi.  In  later  times  there  were  four 
regular  sessions  during  each  prytany  at  which  the  prytanies 
presided,  the  epistates  putting  all  questions  to  vote. 

The  exact  distribution  of  judicial  power  in  the  time  of 
Cleisthenes  cannot  be  stated,  but  the  whole  body  of  citizens 
above  thirty  years  of  age  was  convoked  to  try  persons  charged 
with  certain  public  crimes  and,  when  so  assembled,  bore  the 
name  of  Heliosa  or  Heliasts.  Afterward  6,000  citizens  over 
thirty  years  of  age  were  annually  selected  by  lot,  600  from 
each  tribe.  Five  thousand  of  these  were  distributed  into 
panels  or  decuries  of  500  each,  the  remaining  1,000  being 


290  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

reserved  to  fill  vacancies.  When  there  were  causes  ripe  for 
trial,  the  Thesmothets  or  six  inferior  archons  determined  by 
lot,  which  declines  should  try  and  what  magistrate  should 
preside.  Sometimes  two  decuries  sat  together.  In  time  the 
archons  came  to  be  chosen  by  lot,  and  any  citizen  was  eligible, 
subject  however  to  an  examination  into  his  status  as  a  citizen 
and  his  moral  and  religious  qualifications.  By  this  time  the 
archons  had  become  -shorn  of  much  of  their  power,  their 
principal  functions  being  to  hold  preliminary  examinations, 
preside  at  trials  and  to  pass  sentence  for  petty  offenses.  The 
strategi,  however,  were  chosen,  not  by  chance,  but  by  pref- 
erence of  the  citizens  manifested  by  a  show  of  hands.  The 
date  of  the  adoption  of  universal  eligibility  to  office  is  fixed 
as  after  the  battle  of  Plataea. 

The  modifications  of  the  constitution  of  Solon  in  the  time 
of  Cleisthenes  stopped  short  of  that  full  democracy  which 
developed  later.  The  archons  still  retained  much  judicial 
power,  and  the  poleniarch  was  still  a  general.  They  were 
then  elected,  not  chosen  by  lot.  The  fourth  class  of  the  census 
were  still  excluded  from  the  principal  offices.  The  senate  of 
the  Areopagus  still  retained  some  of  its  power,  but  the  popu- 
lar bodies  of  the  senate  of  500  and  the  general  assembly  be- 
came the  dominant  forces  of  the  state. 

A  peculiar  institution,  ascribed  to  Cleisthenes,  was  the  ostra- 
cism, designed  to  get  rid  of  the  contentions  of  leaders  of  rival 
factions.  Before  a  vote  of  ostracism  could  be  taken  a  case 
was  presented  to  the  senate  and  general  assembly.  In  the  sixth 
prytany  of  the  year  these  bodies  debated  and  determined 
whether  the  public  welfare  required  a  vote  to  be  taken.  If 
they  decided  in  the  affirmative,  a  day  was  named,  the  agora 
was  enclosed  with  a  railing  with  ten  entrances  for  the  citizens 
of  each  tribe,  and  ten  vessels  were  provided  to  receive  the 
votes,  which  consisted  of  a  shell  or  potsherd  with  the  name  of 
the  person  whom  the  voter  desired  to  banish  written  on  it.  At 
the  end  of  the  day  the  votes  were  counted,  and  any  person 
against  whom  there  were  6,000  votes  was  ostracized.  He  was 
allowed  ten  days  to  settle  his  affairs  and  then  required  to 
leave  Attica  for  ten  years,  but  he  retained  all  his  property  and 


GREECE  291 

suffered  no  penalty,  nor  was  he  deemed  disgraced.  It  was  in 
fact  a  great  distinction  to  be  regarded  of  so  much  importance 
as  to  require  ostracism. 

The  spread  of  the  Persian  empire  over  Asia  Minor  brought 
Greeks  and  Persians  in  contact  in  Ionia  and  elsewhere,  and 
the  demand  for  submission,  which  had  been  enforced  on  the 
Greek  cities  of  Asia,  was  extended  to  the  islands  and  to 
Greece.  The  vast  resources  of  the  Persian  king  and  the 
prestige  of  the  success  of  Persian  arms  were  such  as  to  cause 
the  king  of  Macedon  and  many  of  the  Greek  cities,  notably 
Thebes,  and  when  the  final  conflict  came,  Thessaly,  to  submit 
to  the  Persian  king  and  reinforce  his  army.  Democratic 
Athens  in  its  resistance  of  the  foreign  despot  exhibited  in  full 
measure  the  vigor  of  a  free  people  fighting  for  their  independ- 
ence. The  battle  of  Marathon,  fought  about  twenty  years 
after  the  expulsion  of  the  Pistratids,  put  an  end  to  the  first 
invasion.  Under  the  leadership  of  Themistocles  the  Athen- 
ians turned  their  attention  to  the  sea  and  began  to  build  ships. 
The  policy  of  Athens  in  many  particulars  stood  in  strong  con- 
trast to  that  of  Sparta.  The  government  of  Sparta  was  nomi- 
nally monarchial,  but  in  fact,  an  oligarchy,  that  of  Athens  a 
democracy.  The  Spartans  excluded  all  foreign  commerce,  the 
Athenians  invited  it.  The  Spartans  made  war  on  land  their 
principal  business,  the  Athenians  sought  material  prosperity 
through  peaceful  channels,  but  without  neglecting  their  de- 
fense on  land  and  sea.  When  the  invasion  under  Xerxes 
came  ten  years  later,  the  Athenians  were  prepared  with  both 
a  fleet  and  an  army.  Rather  than  submit  they  left  Attica  and 
took  their  families  to  Troezen,  Aegina  and  Salamis.  The 
fortunate  circumstances  of  the  destruction  of  many  of  the 
Persian  vessels  by  storms  made  Greek  victory  possible  on  the 
water.  Nothing  better  illustrates  the  peculiarities  of  the 
Greeks  than  their  conduct  during  this  war.  Want  of  concert 
of  action  and  the  celebration  of  religious  festivals,  deemed  of 
more  importance  than  defense  of  their  country,  left  Leonidas 
with  his  little  band  to  confront  the  whole  Persian  host  at 
Thermopylae,  and  this  when  the  situation  was  fully  under- 
stood. The  defense  made  illustrates  the  extreme  of  Greek 
courage  and  devotion. 


292  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  Pan-Hellenic  congress,  convened  on  call  of  Sparta  and 
Athens  on  the  isthmus  of  Corinth  for  the  purpose  of  obtaining 
a  union  of  all  the  Greeks  against  the  Persians,  exhibited 
strongly  the  want  of  harmony  among  the  different  cities  and 
their  utter  inability  to  unite  even  in  a  case  of  such  extreme 
necessity.  Not  only  did  the  distant  cities  in  Crete  and  Sicily 
fail  to  respond,  but  Argos  remained  neutral,  and  Thebes  and 
many  other  cities  espoused  the  Persian  side.  The  dissensions 
among  the  leaders,  prior  to  the  naval  battle  of  Salamis,  would 
have  prevented  the  great  victory  that  followed  but  for  the 
artifice  of  Themistocles,  which  induced  the  Persians  to  hem 
the  Greeks  in  in  the  Bay  of  Salamis  and  thus  prevent  the  ships 
of  the  different  cities  from  scattering.  The  characteristic 
wrangling  and  dissension  among  the  leaders  while  considering 
the  course  to  be  pursued,  was  followed  by  the  no  less  charac- 
teristic skill,  bravery  and  determination  with  which  the  great 
battle  was  won.  The  battle  of  Plataea  found  Greek  confront- 
ing Greek,  but  with  a  marked  difference  of  spirit.  Those  in 
the  Persian  army  were  hardly  a  source  of  strength  to  it,  ex- 
cept perhaps  the  Thebans,  but  the  spirit  of  those  who  defended 
their  country  was  worthy  of  all  admiration. 

Though  Athens  had  been  burned  and  Attica  laid  waste,  the 
people  returned  victorious,  with  a  purpose  and  a  system  that 
soon  made  Athens  the  leading  city  of  the  Greek  world.  The 
development  of  Athens  was  not  unilateral  but  multiform. 
Each  citizen  was  not  merely  invited  but  required  to  take  an 
interest  in  public  affairs  and  assume  his  share  of  responsibil- 
ity for  the  public  welfare.  All  avenues  for  advancement  were 
open  to  each  citizen.  After  the  battle  of  Salamis  the  fourth 
and  most  numerous  order  of  citizens,  who  under  the  constitu- 
tion of  Solon  were  ineligible  to  office,  were  admitted  to  the 
same  privileges  as  the  other  three  classes.  The  contact  of 
Greeks  with  Persians  exposed  the  former,  not  merely  to  the 
force  of  the  great  despotism,  but  to  the  insidious  influences 
of  the  corrupt  system.  The  leading  citizens  in  the  Greek  cities 
were  approached  by  Persian  agents  with  offers  of  bribes,  in 
some  cases  of  money,  in  others  of  establishment  in  power  un- 
der Persian  protection,  and  it  is  a  melancholy  fact  that,  even 


GREECE  293 

after  the  great  victories  of  Salamis  and  Plataea,  Themistocles, 
to  whom  more  than  to  any  one  else  was  due  the  naval  victory, 
and  Pausanius,  the  Spartan  commander-in-chief  at  the  great 
battle,  were  corrupted  by  Persian  bribes  and  died  in  disgrace. 
Miltiades,  the  commander  at  Marathon,  fell  in  a  somewhat 
different  manner.  Having  induced  the  Athenians  to  place  him 
in  charge  of  an  expedition,  he  diverted  it  to  an  attack  on  the 
people  of  the  island  of  Paros  for  his  own  personal  ends.  He 
was  repulsed  and  in  his  attempt  to  get  away  received  injuries 
which  disabled  him.  On  his  return  to  Athens  he  was  brought 
to  trial  for  his  misconduct  and  condemned  to  pay  a  fine  of 
fifty  talents ;  the  jurors  refusing  to  pass  the  death  sentence 
because  of  his  great  services.  That  the  Athenians  were  able 
to  condemn  and  punish  such  a  man  at  such  a  time  indicates 
most  superior  integrity  in  their  institutions.  The  corruption 
of  Themistocles  led  to  his  ostracism  about  nine  years  after 
the  great  victory.  At  Sparta  the  treason  of  Pausanius,  who 
had  long  been  in  corrupt  and  treasonable  correspondence  with 
the  Persian  king,  was  not  readily  believed  by  the  ephors,  and 
it  was  only  after  the  clearest  proof  of  his  treason,  that  an 
attempt  was  made  to  bring  him  to  trial.  When  the  ephors 
attempted  to  arrest  him  he  took  sanctuary  in  the  temple  of 
Athene  Chalcioecus,  where  he  was  confined  till  at  the  point 
of  starvation,  when  he  was  removed  to  die  where  he  would  not 
desecrate  the  temple.  Notwithstanding  the  Spartan  contempt 
of  money  Pausanius  received  much  Persian  gold  and  was 
ruined  by  it. 

Prior  to  and  during  the  Persian  invasion  Sparta  had  been 
allowed  first  place  in  joint  undertakings  of  the  Greek  cities, 
and  a  Spartan  general  commanded  at  Plataea  and  a  Spartan 
admiral  at  Salamis,  notwithstanding  the  great  superiority  of 
the  Athenian  fleet.  After  the  Persians  retired  and  the  Greeks 
followed  them  to  Cyprus  and  Byzantium  the  Spartan  Pau- 
sanius was  still  in  command.  The  traitorous  correspondence 
of  Pausanius  with  Xerxes  occasioned  his  recall  to  Sparta  for 
trial,  and  in  his  absence  command  of  the  Greek  forces  passed 
to  the  Athenians.  This  led  to  the  formation  of  a  confederacy 
with  Athens  at  its  head,  for  the  protection  of  the  Greek  cities 


294  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

against  Persia  about  477  B.C.  The  leading  spirit  in  the  for- 
mation of  this  confederacy  was  the  Athenean  Aristides.  The 
terms  and  purposes  of  the  confederacy  and  its  general  policy 
were  determined  by  a  synod  of  representatives  of  the  cities, 
which  convened  at  .the  temple  of  Apollo  at  Delos.  As  the 
head  of  this  confederacy  Athens  at  once  took  a  prominence 
never  before  attained.  It  was  a  confederacy,  designed  not 
merely  to  protect  the  cities  on  the  mainland  of  Greece  and  the 
islands  of  the  Aegean  sea,  but  also  those  on  the  coast  of  Asia 
Minor  and  Thrace  as  well.  From  this  time  till  the  breaking 
out  of  the  Peloponnesian  war  the  power  and  commerce  of 
Athens  grew  rapidly.  The  yearly  contributions  of  the  allies  in 
time  were  largely  changed  from  ships  and  men  to  payments  of 
money,  which  Athens  received.  The  voluntary  character  of 
these  contributions  also  disappeared,  little  by  little,  and  pay- 
ment by  the  delinquents  was  compelled  by  Athens  by  force. 

In  the  time  of  Pericles  great  modifications  of  the  govern- 
mental system  were  made,  and  the  archons  and  various  other 
magistrates  were  chosen  by  lot.  The  senate  of  the  Areopagus 
had  exclusive  judicial  power,  not  clearly  defined,  and  also 
exercised  censorship  over  the  habits  of  the  citizens  and  super- 
vision over  the  proceedings  of  the  public  assembly  to  prevent 
infringements  of  the  established  law.  These  powers  were 
based  on  a  foundation  of  long  usage  and  liable  to  great  abuse. 
They  were  greatly  curtailed,  leaving  only  power  to  try  cer- 
tain cases  of  homicide  and  to  impose  small  fines  for  minor 
offences.  The  main  judicial  power  was  transferred  to  the 
popular  dikasts  in  both  civil  and  criminal  causes.  A  very 
common  method  of  trial  was  by  arbitration,  and  a  number  of 
public  arbitrators  were  annually  appointed,  to  whom  or  others 
chosen  by  the  parties,  all  private  disputes  were  submitted  in 
the  first  instance.  If  dissatisfied  with  their  decision  either 
party  might  carry  the  case  before  a  dikast.  The  regular 
number  of  a  panel  seems  to  have  been  500,  but  for  important 
causes  more  were  sometimes  taken,  and  it  seems  that  less 
sometimes  sat.  These  jurors  during  and  after  the  time  of 
Pericles  were  paid  a  small  sum  per  diem  out  of  the  public 
treasury  while  serving.     At  about  the  same   time  the  indi- 


GREECE  295 

vidual  magistrates  and  the  Senate  of  500  were  deprived  of 
all  judicial  attributes  except  to  assess  small  fines,  and  the 
laws  of  Solon  were  brought  down  from  the  Acropolis  to  the 
neighborhood  of  the  market.  The  final  and  efficient  judicial 
power  was  thus  vested  in  a  numerous  body  of  common  citi- 
zens, and  this  was  done  mainly  for  the  purpose  of  obviating 
the  bribery  to  which  single  or  a  small  number  of  officials 
might  be  subjected :  the  Greeks  of  that  time  exhibiting  a 
marked  weakness  of  character  when  tempted  by  money. 

A  general  power  of  supervision  over  the  magistrates  and 
over  the  general  assembly  was  vested  in  seven  magistrates 
called  Nemophylakes,  who  sat  along  with  the  presidents  of  the 
senate  and  assembly,  and  whose  duty  it  was  to  interpose 
whenever  any  step  was  taken  or  proposition  made  contrary 
to  law.  It  was  the  duty  of  the  Thesmothetae  annually  to 
examine  the  existing  laws  and  make  note  of  any  that  con- 
flicted and  in  the  first  prytany  of  the  Attic  year  on  the  eleventh 
day  an  assembly  was  held,  at  which  the  first  business  was  to 
go  through  the  laws  seriatim  and  submit  them  for  approval  or 
rejection.  If  a  law  was  condemned  by  a  vote  of  the  as- 
sembly, or  if  any  citizen  had  a  new  law  to  propose,  the  third 
assembly  of  the  prytany  appointed  500  to  1,000  Nomothetae 
from  among  the  6,000  dikasts  to  consider  the  proposed 
change.  Previous  notice  was  required  to  be  given  by  a  citi- 
zen having  a  new  law  to  propose,  in  order  that  the  time 
necessary  for  the  sitting  of  the  Nomothetae  might  be  meas- 
ured according  to  'the  number  of  matters  to  be  submitted  to 
their  consideration.  Public  paid  advocates  were  named  to 
defend  the  existing  law,  and  the  mover  of  a  repeal  was  re- 
quired to  make  out  his  case  before  the  Nomothetae.  The 
power  to  enact  laws,  except  a  decree  applicable  to  a  single 
case,  was  thus  taken  away  from  the  general  assembly.  A 
very  peculiar  provision  was  that  by  which  the  author  of  a 
new  law  was  liable  to  indictment,  trial  and  punishment,  where 
the  new  enactment  contradicted  a  law  already  in  existence 
without  expressly  repealing  it,  or  where  it  was  otherwise 
defective  or  mischievous.  If  the  dikastry  before  whom  the 
author  was  tried  found  him  guilty,  it  had  the  effect  of  repeal- 


296  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  the  new  law.  The  punishment  inflicted  in  this,  like  some 
other  classes  of  cases,  was  variable.  The  prosecutor  might 
propose  a  sentence  and  the  accused  might  also  propose  one. 
The  dikastry  then  adopted  either  one  or  the  other  without 
change.  If  the  accused  was  acquitted,  the  accuser  was  lial:)ie 
to  a  fine  of  i,ooo  drachmas,  unless  one-fifth  of  the  dikasis 
voted  for  conviction.  The  author  of  the  law  could  not  be 
punished  if  the  prosecution  was  instituted  after  the  expira- 
tion of  a  year,  but  the  law  itself  might  be  condemned  and  thus 
repealed.  Publicity,  opportunity  to  produce  evidence  and  to 
be  fully  heard  in  argument  were  characteristic  of  Athenian 
trials.  The  number  of  the  jury  and  modes  of  trial  are  gen- 
erally regarded  as  affording  undue  weight  to  oratory,  but 
no  ancient  system  is  known  to  us  which  on  the  whole  worked 
so  fairly.  Freedom  of  speech  on  all  matters  of  public  interest 
is  a  strong  proof  of  the  vigor  of  the  democracy. 

The  internal  system  as  perfected  in  the  time  of  Pericles 
continued  without  great  change  until  the  Macedonian  con- 
quest, but  the  situation  of  the  members  of  the  Athenian  de- 
fensive league  gradually  changed,  so  that  in  time  all  but  a  few 
of  the  strongest  were  regarded  as  Athenian  dependencies. 
They  were  compelled  to  pay  their  yearly  tribute,  which  was 
kept  at  Athens  instead  of  Delphos.  The  synod,  which  at  first 
determined  the  course  to  be  pursued  in  matters  affecting  the 
public  interest,  ceased  to  exercise  any  authority,  and  all  ques- 
tions were  determined  at  Athens.  Toward  her  new  colonies, 
as  well  as  the  weaker  members  of  the  confederacy,  Athens 
or  their  citizens  with  citizens  of  Athens  were  brought  before 
assumed  imperial  powers.  Disputes  between  her  dependencies 
the  Athenian  dikasts  for  trial.  While  this  in  theory  opened 
to  all  the  same  forum  that  the  Athenian  citizens  were  bound 
to  resort  to  in  contests  with  each  other,  in  practice  it  must 
have  imposed  hardships  on  suitors  residing  at  a  great  distance 
as  well  on  the  score  of  expense  as  of  want  of  familiarity  with 
procedure  and  inability  to  prove  the  facts.  The  excellence  of 
the  domestic  institutions  of  the  head  of  the  confederacy  could 
not  render  palatable  arbitrary  dictation  to  the  dependencies. 
Hostitlity  against  Athens  grew  up  in  the  subject  cities  and 


GREECE  2<yj 

increased  in  strength  as  the  fear  of  a  Persian  despotism  grew 
less.  The  wonderful  growth  of  the  democratic  city  under 
the  leadership  of  Pericles,  its  commerce,  its  ships,  its  wealth 
in  public  treasuries  and  buildings  and  its  brilliance  in  all  lines 
of  culture  and  intellectual  development,  excited  the  jealousy 
of  rival  cities  and  discontent  among  its  dependencies.  With 
the  growth  of  Athens  and  its  allied  cities,  which  maintained 
systems  of  government  democratic  in  their  essential  features, 
the  Spartan  leadership  was  also  extended  among  the  oli- 
garchical cities.  Though  at  all  periods  there  were  frequent 
wars  and  much  fighting  among  the  independent  cities,  the 
numbers  involved  in  the  conflict  were  not  so  great  as  to 
prevent  the  increase  of  population  and  wealth  until  the  break- 
ing out  of  the  Peloponnesian  war.  Sparta  and  her  alliens  on 
one  side  and  Athens  and  hers  on  the  other,  in  431  B.C.,  en- 
tered on  a  struggle  for  mastery,  which  involved  substantially 
all  the  Greeks  of  the  mainland,  the  islands  and  the  coast  of 
Asia.  The  struggle  became  so  fierce  that  each  party  in  turn 
sought  aid  from  the  Persians,  and  leaders  on  both  sides  were 
corrupted  by  Persian  bribes.  The  simplicity  of  manners  of 
the  Spartans  gave  way  when  brought  in  frequent  contact  with 
the  orientals,  and  their  generals  were  found  no  more  proof 
against  bribery  than  those  of  other  cities.  The  social  system, 
however,  remained  throughout  the  struggle  substantially  un- 
changed. The  Athenian  democracy,  notwithstanding  the  un- 
wise and  most  disasterous  expedition  to  Sicily,  manifested 
most  wonderful  energy  and  resourcefulness,  and  the  integrity 
of  its  institutions  was  maintained  till  411  B.C.  when  a  con- 
spiracy of  the  oligarchical  elements  resulted  in  the  rulership 
of  a  senate  of  400  for  a  few  months.  This  being  soon  over- 
turned, the  democratic  institutions  were  again  restored,  and 
under  them  the  people  manifested  renewed  vigor  and  devo- 
tion to  the  public  welfare.  The  surrender  of  the  city  in  404 
B.C.  was  followed  by  the  establishment  of  an  oligarchy  of 
thirty,  the  spirit  of  whose  rule  was  in  marked  contrast  to  that 
of  the  democracy.  Though  in  the  trial  of  the  generals  after 
the  battle  of  Aegospotami  there  was  a  departure  from  legal 
forms,  and  the  generals  were  condemned  to  death  without  a 


298  EVOLUTION.  OF  GOVERNMENTS  AND  LAWS 

regular  trial,  they  still  had  a  hearing  before  the  assembly  and 
were  condemned  by  a  vote  of  the  people  by  tribes.  The 
thirty,  however,  ordered  summary  executions  without  trial, 
and  proceeded  to  get  rid  of  such  of  the  people  as  they  feared. 
Their  tyranny  was  in  striking  contrast  to  the  formal,  free 
and  orderly  administration  of  established  laws  by  the  magis- 
trates and  dikasts.  Though  their  authority  was  established 
with  the  sanction  of  the  victor  in  the  long  and  desperate 
struggle,  its  exercise  was  so  utterly  at  variance  with  the  pre- 
judices and  feelings  of  the  people,  even  of  their  own  partisans, 
that  in  the  following  year  they  were  driven  out  under  the 
leadership  of  the  returning  exiles,  and  the  democracy  was 
restored.  While  the  Peloponnesian  war  was  waged  on  the 
part  of  Sparta  to  destroy  the  power  of  a  hated  rival,  it  must 
ever  stand  to  the  credit  of  the  victor  that,  instead  of  the  de- 
struction of  the  city  after  its  surrender,  after  the  destruc- 
tion of  its  walls,  the  city  was  left  uninjured,  notwithstanding 
the  demand  of  some  of  the  allies  that  it  be  destroyed  and  its 
people  scattered.  The  course  of  Sparta  in  this  respect  was 
in  strict  accord  with  the  principle  of  the  Delphic  Amphicty- 
onic  league,  which  tended  to  mitigate  the  horrors  of  war 
among  different  Greek  cities  and  prohibited  the  destruction 
of  a  conquered  city.  This  league,  religious  in  character, 
seems  to  have  succeeded  in  promulgating,  and  enforcing  in  a 
great  number  of  instances,  humane  principles  mitigating  the 
horrors  of  war.  It  was  only  in  holy  wars,  waged  against 
members  of  the  league  charged  with  some  sacrilege,  that  these 
humane  principles  were  cast  aside  and  barbaric  destruction 
inflicted  without  restraint. 

From  the  close  of  the  Peloponnesian  war  to  the  rise  of  the 
Macedonian  power  was  a  period  of  frequent  wars  and  varying 
combinations.  Thebes,  the  ancient  enemy  of  Athens  and  fre- 
quent ally  of  Sparta,  under  the  lead  of  Epaminondas  finally 
terminated  the  power  of  Sparta  at  the  battle  of  Leuctra.  The 
Persian  practice  of  hiring  mercenary  troops  became  preval- 
ent with  Greek  cities,  which  now  relied  on  money  rather  than 
on  the  devotion  of  their  citizens,  for  offensive  and  defensive 
operations.     War,  instead  of  being  the  exercise  of  patriotic 


GREECE  299 

devotion,  became  a  profession,  and  mercenary  bands,  fighting 
tor  whomever  would  pay,  became  numerous.  The  ancient 
spirit,  so  much  admired  in  subsequent  ages,  decayed.  Greece 
was  still  the  land  of  culture,  but  not  of  incorruptible  heroes. 

In  this  condition  the  arts  and  arms  of  Philip  easily  placed 
him  at  the  head  of  the  Hellenic  world.  Though  neither  he 
nor  his  son  Alexander  claimed  despotic  powers  over  the  Greek 
cities,  both  were  typical  tyrants,  recognizing  no  restraints. 
At  the  convention  of  deputies  held  at  Corinth  330  B.C.  Alex- 
ander was  appointed  commander  of  the  Greeks  for  the  purpose 
of  prosecuting  war  against  Persia.  By  the  terms  of  the 
agreement  then  made  the  freedom  and  autonomy  of  each 
Greek  city  was  recognized,  and  its  existing  constitution  was 
guaranteed.  Violence  of  one  against  another  was  prohibited 
and  freedom  of  commerce  guaranteed.  Sparta  of  all  the 
leading  cities  appears  to  have  been  the  only  one  which  did 
not  join.  Though  this  convention  effectually  bound  the  cities 
to  Alexander,  it  utterly  failed  to  place  effectual  restraint  on 
him,  for  it  provided  for  the  admission  into  the  cities  of  Mace- 
donian troops,  ostensibly  to  enforce  obedience  to  the  terms 
of  the  agreement.  Protests  against  his  tyrannies  were  un- 
availing. The  revolt  of  Thebes  was  followed  by  its  capture 
and  the  massacre  of  its  people,  including  women  and  chil- 
dren, and  the  destruction  of  the  city.  The  severity  of  the 
treatment  was  in  accordance  with  the  wishes  of  the  Greek 
auxiliaries  of  Alexander's  army.  With  the  ascendency  of 
Alexander  the  independence  of  Greek  cities  ended,  and  the 
peculiar  political  conditions  under  which  the  people  had  pro- 
gressed so  rapidly  in  intellectual  development,  in  literature, 
philosophy,  arts  and  sciences  came  to  an  end,  but  Greek  cul- 
ture endured  and  was  diffused  over  Asia  by  the  armies  of 
Alexander  and  his  successors,  and  over  Europe  under  the  sub- 
sequent empire  of  Rome. 

No  equal  number  of  people  in  an  equal  period  of  time  have 
left  so  many  evidences  of  intellectual  activity  as  the  Greeks 
from  the  foundation  of  Sparta  to  the  time  of  Alexander.  At 
this  day  the  names  of  illustrious  Greeks  of  this  period  are 
familiar  in  greater  number  to  the  people  of  Europe  and  Amer- 


300  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ica  than  those  of  any  other  country  at  any  time,  with  the  ex- 
ception, perhaps,  of  Rome  when  at  its  zenith  of  power.  But 
the  intellectual  activity  of  Greece  was  far  more  diverse  and 
extended  over  a  far  wider  range  than  that  of  Rome. 

The  Greeks  developed  the  idea  of  determining  controversies 
by  laws  declared  in  advance  of  the  fact  and  by  an  impartial 
tribunal  acting  on  evidence  adduced  at  a  public  trial  with  the 
right  to  a  full  hearing  in  argument  on  the  facts  and  the  law. 
Individuality  and  self-reliance  were  the  leading  character- 
istics of  the  people.  Religion  and  government,  though  not 
wholly  disconnected,  were  not  merged  or  confused.  The 
same  gods  were  worshipped  by  the  Greeks  of  many  cities, 
wholly  independent  of  each  other,  and  the  bonds  of  common 
religion  were  always  much  wider  than  those  of  any  govern- 
mental system.  Though  the  religious  sentiment  was  strong, 
it  was  in  the  main  disconnected  from  political  sentiment,  and 
the  laws  passed  were  based  on  views  of  justice  and  policy 
rather  than  on  religious  sanction. 

Authorities 

Grote :     History  of  Greece. 

Adolph  Holm:    The  History  of  Greece. 

Thucydides. 

Herodotus. 

Plutarch's  Lives. 

Encyclopaedia  Britannica. 


CHAPTER  XIV 


Rome 


The  most  ancient  people  of  Italy  of  whom  we  have  any 
information  were  in  .substantially  the  same  stag.e  of  develop- 
ment as  the  earliest  Greeks  known  to  us.  They  tended  flocks 
and  herds  and  cultivated  the  soil.  They  had  implements  of 
iron  and  woven  clothing.  The  relations  of  the  members  of 
a  family  were  clearly  defined,  and  the  social  organization  de- 
veloped from  the  germ  of  the  household.  Written  history 
does  not  begin  till  centuries  after  the  foundation  of  Rome, 
and  what  is  known  of  the  earliest  days  of  the  city  comes 
through  tradition  and  the  evidence  of  the  works  which  en- 
dured till  letters  were  introduced.  The  mythical  tale  of 
Romulus  and  Remus  no  longer  finds  believers,  and  the  easy 
and  definite  description  of  the  foundation  of  the  city  is  now 
impossible.  At  the  time  of  the  first  settlements  from  which 
the  city  developed,  we  fail  to  find  evidences  of  any  social 
organization  which  included  large  numbers  of  people  or  ex- 
tended over  a  considerable  district.  Apparently  there  was  no 
government  more  comprehensive  than  that  of  a  clan,  and  the 
authority  exercised  was  paternal  in  character.  Rome  grew 
from  the  clans  settled  on  and  about  the  Palatine  hill.  The 
city  took  more  distinct  form  and  character  when  the  walls 
were  constructed  on  this  hill.  A  discussion  of  the  cornbina- 
tion  of  Latin,  Sabine  and  Etruscan  elements, to  form  the  city 
would  serve  no  purpose  here.  We  must  start  with  a  consider- 
able aggregation  of  people,  including  those  following  urban 
pursuits  as  well  as  herdsmen  and  cultivators  of  the  soil. 

The  social  organization  of  the  clans  did  not  disappear  with 
the  growth  of  the  city,  but  the  early  structure  formed  the 
basis  in  this  as  in  most  states  of  that  which  followed.  Though 
the  monogamous  family  with  the  rights  and  duties  of  each 
member  clearly  defined  is  the  product  of  an  advanced  social 

301 


302  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

stage,  it  not  only  existed  at  Rome  in  the  earliest  days,  but 
was  the  most  clearly  marked  feature  of  society,  and  fur- 
nished the  basis  of  the  governmental  system.  The  free  family 
was  the  social  unit.  It  consisted  of  a  father,  who  was  his 
own  master,  a  wife  whom  he  had  wedded  by  the  priestly  cere- 
mony of  confarreatio,  their  sons  and  sons'  sons  and  their 
lawfully  wedded  wives  and  unmarried  daughters.  It  did  not 
include  the  children  of  a  daughter,  for  if  she  were  married 
they  belonged  to  the  family  of  her  husband,  and  if  not  they 
had  no  place  in  the  family.  All  the  property  of  the  family, 
including  the  slaves,  belonged  to  the  man  at  its  head.  The 
power  of  the  father  in  his  household  was  absolute  and  con- 
tinued till  death.  He  could  punish  wife  and  descendants  even 
with  death.  The  women  of  the  family  were  not  in  fact 
treated  as  slaves,  however,  but  within  the  household  were 
its  mistresses.  Sons  with  families  might  be  allowed  to  man- 
age a  separate  property,  but  in  law  it  belonged  to  the  father. 
A  father  might  even  sell  his  son  as  a  slave  to  a  foreigner. 
As  a  Roman  he  could  not  be  a  slave  in  law  to  a  Roman, 
though  he  might  be  so  in  effect.  While  the  father  was  under 
no  legal  restraint  in  dealing  with  his  family,  he  was  subject 
to  religious  anathema  in  case  of  gross  abuse  of  his  authority. 
From  the  family  the  gens  or  clan  developed,  and  these  were 
distinguished  one  from  the  other  only  by  ability  to  trace  defi- 
nitely the  relationship.  Those  whose  descent  could  be  definitely 
traced  to  a  common  ancestor  belonged  to  the  family.  Those 
who  merely  bore  the  family  name  but  could  not  give  the  chain 
of  de.scent  belonged  to  the  gens.  Attached  to  the  patrician 
houses  there  was  a  class  of  dependents,  called  clients,  who 
sought  the  protection  of  the  house.  The  relation  of  the  client 
was  intermediate  between  that  of  the  slave  and  the  free  man. 
He.  was  in  the  power  of  the  patron,  who  affarded  him  ground 
to  till  or  other  means  of  livelihood,  appeared  for  him  in  any 
litigation  and  obtained  redress  for  wrongs  committed  against 
him.  These  client es  were  regarded  as  part  of  the  familia  and 
were  legally  subject  to  the  will  of  the  father,  who  might,  if 
he  chose,  exercise  the  same  absolute  power  over  them  and 
their  property  as  over  the  rest  of  the  family.     The   father 


ROME  303 

was  the  religious  head  of  the  household  and  conducted  the 
family  rites.  While  the  sons  in  patrician  famihes  were  in  all 
personal  affairs  subject  to  the  absolute  power  of  the  father, 
they  were  citizens  of  the  state  and  as  such  had  equal  political 
privileges  and  duties. 

Outside  the  patrician  famihes  were  the  plebs,  who  were 
protected  by  the  state  but  had  no  share  in  public  affairs.  The 
Roman  people  included  three  original  tribes,  the  Romnes, 
Titles  and  Luceres,  and  these  were  divided  into  thirty  curiae. 
The  airia  was  the  primary  association  with  its  common 
sacra,  priests,  festivals,  chapel  and  hearth.  The  tribal  di- 
vision does  not  appear  of  special  importance  in  the  constitu- 
tion of  the  state,  but  the  curiae  formed  the  basis  of  the  system. 
Just  when  and  how  they  first  developed  is  unknown,  but  the 
first  view  discloses  them  as  including  not  merely  persons  re- 
lated by  blood  or  marriage,  but  persons  not  belonging  to  the 
gentile  families,  with  membership  based  largely  on  occupancy 
of  contiguous  lands  included  within  the  territory  of  the  curiae. 
There  was  great  liberality  in  the  admission  of  citizens  of 
friendly  communities,  who  might  be  granted  the  right  of  citi- 
zenship by  the  coniitia  on  renouncing  membership  of  their 
native  city,  otherwise  they  were  regarded  rather  as  guests 
under  protection  of  the  community. 

At  the  head  of  the  earliest  Rome  was  the  king,  who  stood 
as  father  of  the  city  with  powers  corresponding  to  those  ex- 
ercised by  the  father  over  the  gentile  family.  He  was  the 
leader  in  war  and  in  peace,  and  the  religious  head  of  the  state. 
His  powers,  like  those  of  the  patrician,  were  absolute  in 
theory,  yet  restrained  by  custom  and  public  sentiment.  He 
was  chosen  from  among  the  fathers  and  held  office  for  life. 
He  consulted  the  gods  for  the  public  and  named  the  priests 
and  priestesses.  He  made  treaties  of  peace  which  bound  the 
community.  He  alone  had  the  right  to  address  the  citizens 
in  their  public  assemblies,  or  to  name  others  to  do  so.  He 
kept  the  keys  to  the  public  treasury,  and  near  his  dwelling 
was  the  blazing  hearth  of  Vesta  and  the  storehouse  of  the 
community.  He  was  judge  of  the  people  in  all  causes  civil 
and  criminal  and  imposed  such  penalties  as  he  saw  fit.     From 


304  EVOLUTION    OF    GOVERNMENTS    AND   LAWS 

a  sentence  of  death  he  might  allow  an  appeal  to  the  people 
for  pardon,  but  was  not  bound  to  do  so.  He  had  the  right 
to  levy  taxes  and  call  out  the  military  force.  While  he  might 
appoint  subordinate  officers  and  even  a  viceroy  to  rule  in  his 
absence,  all  such  served  subject  to  his  pleasure.  He  might 
nominate  his  successor,  who  was  confirmed  by  the  freemen  in 
a  public  assembly  convoked  for  the  purpose.  In  case  of  the 
death  of  the  king  without  naming  a  successor  the  senators, 
(patres),  met  and  named  an  interrex  from  their  number,  who 
ruled  not  more  than  five  days.  He  then  named  a  successor 
according  to  an  order  of  succession  fixed  by  lot  for  a  like 
term.  This  second  interrex  might  then  name  a  successor  for 
life.  The  king  thus  named  was  then  accepted  in  the  public 
assembly  by  the  citizens  old  enough  to  bear  arms  and  after- 
ward confirmed  by  the  senate.  When  the  people  were  as- 
sembled at  the  summons  of  the  king  to  decide  on  any  public 
matter,  they  met  in  the  comitium  at  the  north  end  of  the 
forum  and  were  presided  over  by  the  king  or  interrex  who 
put  the  questions.  Each  curia  voted  separately,  a  majority 
determining  its  vote,  and  a  majority  of  the  curiae  decided  the 
question.  While  they  had  no  power  to  pass  laws  or  restrain 
the  power  of  the  king,  the  disposition  of  property  by  will  or 
the  renunciation  of  family  or  gentile  sacra  could  only  take 
place  in  the  public  assembly,  and  adoption  into  the  family 
required  their  assent  as  well  as  presence.  The  senate  was 
made  up  of  fathers  of  the  gentile  houses,  but  did  not  include 
all  of  them.  The  general  theory  of  the  organization  of  the 
state  was  that  each  of  the  tribes  was  divided  into  ten  curiae, 
that  a  curia  included  ten  clans  or  one  hundred  households, 
and  that  each  household  furnished  a  foot  soldier,  each  clan 
a  horseman  and  a  senator.  The  ten  curiae  of  each  tribe  fur- 
nished one  hundred  senators,  or  three  hundred  in  all.  While 
the  number  of  clans  and  households  is  thus  definitely  stated, 
they  could  not  in  the  nature  of  things  remain  constant,  and 
the  numbers  given  may  not  be  accurate  for  any  date,  but  the 
curiae  were  definite  divisions  of  the  state  and  continued  as 
political  units.  Each  curia  had  its  warden  (curio),  and  its 
priest  (flamen  curialis).     Vacancies  in  the  senate  were  filled 


ROME  305 

by  appointment  of  the  king.     The  powers  of  the  primitive 
senate  are  not  readily  comprehended.     As  the  heads  of  their 
famihes  they  were  the  chief  men  of  the  state,  each  ruHng  his 
own   family,   slaves   and   clients.      Collectively   their   govern- 
mental functions  appear  very  limited,  except  in  the  matter  of 
providing  a  king,  yet  they  held  a  veto  on  changes  in  the  con- 
stitution of  the  state  proposed  to  the  assembly  by  the  king 
and  adopted  by  it.    Though  there  was  no  written  constitution, 
the  senate  in  a  negative  manner  by  its  veto  might  declare  what     , 
the  fundamental  law  was.     In  theory  the  king  was  absolute,    r^ 
yet  the  organization  of  society  was  such  that  despotic  powers 
were  denied  him.    The  citizens  were  by  no  means  slaves  to  the 
king,  but  rather  his  equals,  from  whose  number  he  had  been 
chosen.     He  held  his  office  under  no  claim  of  divine  right 
but  of  regular  selection.     The  vigor  of  the  unwritten  consti- 
tution was  due  to  the  spirit  and  moral  influence  of  the  mono- 
gamous Roman  families,  and  the  need  of  the  king  for  the 
counsel  and  support  of  the  citizens  in  the  assembly  and  the 
senators  in  council.    The  king  had  his  subordinates  to  execute 
his  commands,  but  the  military  power  of  the  state  rested  in 
the  body  of  citizens,  who  were  soldiers  only  on  emergency, 
and  the  senate  might  veto  a  war  of  aggression.     Though  in 
theory  the  powers  of  the  senate  in  its  earliest  days  were  ex- 
ceedingly limited,  the  influence  of  such  a  body  of  men  must 
always  have  been  great,  and  subsequent  history  demonstrates 
how  that  influence  developed  into  recognized  authority. 

In  dealing  with  the  earliest  constitution  of  Rome  we  are 
forced  to  rely  much  on  inferences  deduced  from  the  state  of 
society  at  later  periods,  when  we  have  a  clearer  and  more 
authentic  view  of  it,  and  on  traditions  passed  down  from 
earlier  times.  The  division  of  the  people  into  the  patrician 
families  with  their  clients  and  slaves  and  plehs,  who  were  yet 
not  citizens  nor  slaves,  is  explained  on  the  theory  that  the 
patricians  were  of  the  stock  of  the  earliest  founders  of  the 
community  and  that  others,  brought  in  from  conquered  dis- 
tricts or  voluntarily  settling  in  the  city,  were  protected  by  the 
state  though  given  no  share  in  public  affairs.  The  ranks  of 
the  plehs  were  also   augmented   by   manumitted   slaves   and 


3o6  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

clients  and  their  descendants,  who  became  detached  from  the 
households  of  their  patrons.  As  in  the  earliest  times  the 
warriors  were  taken  from  the  citizens  only,  the  numbers  of 
the  plebs,  who  were  allowed  to  have  families  and  acquire 
property,  increased  much  more  rapidly  than  those  of  the 
patrician  stock.  Though  in  our  day  great  stress  is  laid  on  the 
efficacy  of  written  constitutions  and  formal  legislative  enact- 
ments, the  early  history  of  Rome  exhibits  in  a  striking  man- 
ner how  accepted  principles  may  govern  effectually  without 
any  written  constitution  or  laws,  and  how  a  government  may 
be  in  form  and  theory  despotic,  yet  effectually  curbed  in  many 
ways.  The  real  living  law  is  that  which  is  generally  observed 
and  enforced,  rather  than  that  which,  though  promulgated  by 
the  recognized  law-making  power,  is  yet  disregarded  in  actual 
practice. 

The  rules  which  the  Romans  recognized  as  authoritative 
were  classified  under  the  heads  of  fas,  which  was  conceived 
to  be  the  laws  promulgated  by  the  gods,  jus,  which  signified 
established  human  customs  and  regulations,  and  boni  mores, 
which  expressed  the  general  public  sentiment  with  reference 
to  personal  conduct.  Fas,  which  was  accepted  as  the  will  of 
the  gods,  regulated  religious  ceremonials,  which  constituted 
a  most  important  element  in  both  public  and  domestic  life. 
It  went  much  farther,  however,  and  furnished  precepts  re- 
garded, as  binding,  not  merely  on  the  people  of  the  state  in 
their  intercourse  with  each  other,  but  on  all  mankind.  It 
forbade  war  without  the  prescribed  ceremonial,  through  which 
the  gods  were  supposed  to  be  consulted.  It  enjoined  faith  to 
be  kept  with  enemies,  when  under  sanction  of  an  oath,  and 
hospitality  to  foreigners.  It  punished  murder;  the  sale  of  a 
wife  by  her  husband;  the  resistance  by  children  of  the  author- 
ity of  their  parents;  incestuous  connections;  false  oaths  and 
broken  vows;  and  the  displacement  of  boundaries  and  land- 
marks. All  these  were  regarded  as  offenses  against  the  sacred 
ordinances  of  the  gods.  For  minor  offences  expiation  was 
allowed,  but  for  the  graver  ones  the  heavy  penalty  of  excom- 
munication was  imposed.  The  outlaw — homo  sacer — was  an 
outcast  with  whom  it  was  pollution  to  associate,  who  could 


ROME  307 

take  no  part  in  public  affairs,  civil  or  religious,  and  whom  any 
one  might  kill  with  impunity.  Jus  was  based  mainly  on  long 
established  customs,  recognized  as  binding,  and  in  the  early 
days  only  to  a  small  extent  on  rules  proposed  by  the  king  and 
adopted  by  the  people  in  the  assembly  of  the  curiae.  Boni 
mores  related  to  the  demeanor  and  obedience  of  inferiors  to 
superiors,  chastity,  fidelity  to  engagements  and  the  like,  and 
were  enforced  by  the  pater  familias,  the  elders  of  the  gens  and 
the  king. 

With  the  early  Romans  marriage  was  a  solemn  religious 
duty.  The  happiness  of  the  dead  in  a  future  state  was  be- 
lieved to  depend  on  the  due  observance  of  funeral  obsequies 
and  other  rites  for  the  good  of  their  souls,  which  could  only 
be  performed  by  descendants  of  the  deceased.  The  choice  of 
the  man  was  limited  to  a  woman  with  whom  he  had  a  right 
of  intermarriage.  The  wife  of  a  patrician  must  be  either  the 
daughter  of  a  patrician  or  a  woman  of  an  allied  community. 
In  taking  her  as  his  wife  he  detached  her  from  her  family  and 
its  household  gods,  to  become  a  part  of  his  family  and  under 
the  hand  of  the  head  of  the  household.  This  must  be  done 
with  the  approval  of  the  gods,  consulted  through  auspicia. 
The  ceremony  was  a  religious  one,  conducted  by  the  high 
priest  in  presence  of  ten  witnesses  representing  the  ten  curiae 
of  the  bridegroom's  tribe,  and  was  called  confarreatio.  By 
this  ceremony  she  and  all  her  property  passed  in  manum, 
under  the  hand  of  the  head  of  her  husband's  home,  and  thence- 
forth she  and  all  that  came  with  her  were  his  property.  The 
religious  feelings  of  the  heads  of  Roman  families  were  such 
that  the  theory  of  the  despotic  rights  of  the  father  was  pro- 
ductive of  little  if  any  evil.  The  father  was  dependent  on 
the  son  for  those  religious  offices  which  were  so  highly  es- 
teemed, and  mutual  dependence  as  well  as  natural  affection 
seem  to  have  made  the  early  Roman  families  high  types  of 
domestic  circles.  In  case  of  the  unfortunate  failure  of  issue 
or  loss  of  all  sons,  threatening  the  extinction  of  the  family, 
the  father  might  provide  for  its  perpetuation  by  adrogation 
or  adoption.  By  the  former  the  pater  familias  of  another 
household  was  transferred  to  become  the  son  of  the  adrogator 


3o8  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

and  thereby  permitted  his  own  family  to  be  nominally  ex- 
tinguished. This  could  only  be  done  with  the  approval  of 
the  pontiffs  and  the  sanction  of  the  curiae.  The  adrogatee 
and  all  his  family  and  property  passed  under  the  power  of 
the  adrogator.  In  case  of  the  adoption  of  the  son  of  another 
pater  familias  the  form  was  more  simple,  requiring  the  con- 
sent of  the  father  of  the  adopted  son.  The  plehs  contracted 
marriages  by  consent,  but  were  incapable  of  the  religious 
ceremony  of  confarreatio  with  its  legal  consequences,  nor 
were  they  allowed  to  perpetuate  their  families  by  adrogation 
and  probably  not  by  adoption. 

In  the  earliest  times  there  was  private  tenure  of  land,  but 
there  were  also  public  lands  belonging  to  the  state.  To  what 
extent  lands  were  held  in  common  by  the  clans,  if  at  all,  can- 
not be  stated.  The  plebs  were  allowed  to  acquire  and  hold 
land  as  well  as  the  patricians.  The  law  of  inheritance  gave 
the  property  of  the  deceased  to  his  children  and  widow 
equally,  sons  and  daughters  sharing  alike,  except  that  a  daugh- 
ter, married  and  thus  a  member  of  her  husband's  family,  had 
no  share.  This  equality  was  materially  modified  however  by 
the  guardianship^  under  which  the  widow  and  unmarried 
daughters  passed,  exercised  by  their  nearest  male  relation; 
thus  the  sons  became  guardians  of  their  mother  and  sisters. 
In  default  of  widow  and  children  the  inheritance  went  to  the 
gens.  The  succession  might  be  changed  by  a  testament,  exe- 
cuted in  the  assembly  of  the  curiae,  or  in  the  presence  of 
comrades  on  the  eve  of  battle.  Among  the  piebs  the  inheri- 
tance passed  to  the  children,  but  in  the  earliest  times  not  to 
collateral  relations,  and  they  were  without  legal  capacity  to 
make  a  will. 

In  the  earliest  days  money  was  not  in  use,  and  there  was 
hardly  such  a  thing  as  the  law  of  contracts  in  the  modern 
sense.  As  in  most  primitive  communities,  possession  and 
ownership  were  usually  concomitant,  and  for  invasion  of  his 
possession  the  owner  usually  asserted  his  rights  in  person. 
The  dividing  line  between  private  wrongs  and  public  offenses 
was  not  clearly  drawn.  The  tendency  was  to  confuse  them 
and  treat  all  matters  brought  before  the  judge  as  of  a  crimi- 


ROME  309 

nal  character.  Nor  was  the  punishment  of  crime  exclusively 
the  province  of  the  king  or  judge.  In  case  of  murder  it  was 
the  kinsman  of  the  person  murdered  who  avenged  his  death. 
So  too  the  husband  or  father  might  kill  wife  or  daughter  and 
her  paramour  caught  in  adultery  on  the  spot,  but  if  he  de- 
layed till  his  blood  cooled  he  could  then  proceed  only  in  his 
domestic  tribunal. 

The  early  procedure  was  simple:  the  accused  on  trial  for  a 
criminal  offence  or  the  parties  to  a  private  suit  came  before 
the  king  at  the  judgment  platform.  He  was  attended  by  his 
lictores  (messengers).  The  facts  were  ascertained  by  the 
confessions  of  parties  and  the  testimony  of  witnesses  with- 
out the  use  of  torture,  except  on  slaves.  Among  capital  of- 
fences were  treason,  violent  sedition,  parricide,  wilful  murder, 
sodomy,  violation  of  a  maiden,  arson,  perjury,  carrying  away 
the  harvest  by  witchcraft  and  unlawfully  cutting  the  corn  in 
the  sacred  fields  by  night.  The  king  might  hear  and  pro- 
nounce judgment  alone  or  on  consultation  with  advising  sena- 
tors, or  might  depute  the  power  to  others.  There  were 
trackers  of  murder,  quaestores  parricidii,  whose  duty  it  was 
to  arrest  murderers.  The  mode  of  inflicting  the  death  sen- 
tence was  by  throwing  down  from  the  capitol  hill,  hanging, 
burning  or  drowning.  Pardon  could  only  be  granted  by  the 
people  on  an  appeal  to  them,  which  the  king  was  at  liberty 
to  allow  or  refuse.  The  culprit's  life  was  spared,  if  on  his 
way  to  execution  he  accidentally  met  one  of  the  vestal  virgins. 
For  minor  offences  fines  of  cattle  were  imposed  or  the  culprit 
was  scourged.  For  serious  injuries  the  wronged  party  was 
entitled  to  retaliation,  eye  for  eye,  etc.  For  thefts  and  other 
injuries  to  person  or  property  compensation  was  usually 
awarded. 

Under  Servius  Tullius  important  changes  were  made  in  the 
organization  of  the  state.  These,  though  induced  mainly  by 
military  considerations,  had  a  most  important  influence  in 
later  years  on  the  civil  institutions,  and  on  the  relations  of 
the  plcbs  and  patricians.  A  census  was  taken,  registering  the 
citizens  with  the  numbers  in  their  families,  and  showing  the 
value  of  their  lands  and  holdings.     This  census  was  revised 


310  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

periodically.  Transfers  of  lands  to  be  recognized  were  re- 
quired to  be  made  publicly  under  certain  forms  or  by  sur- 
render in  a  court  before  the  supreme  magistrate.  This  form 
of  conveyance  was  called  niancipium  and  continued  in  use  till 
the  time  of  Justinian.  All  freeholders  from  seventeen  to 
sixty  years  old,  whether  patricians  or  plebs,  were  equally 
liable  to  military  duty  and  were  divided  into  centuries,  classes 
and  tribes  without  reference  to  the  old  divisions.  The  cen- 
tury of  one  hundred  men  became  the  unit,  and  the  centuries 
were  arranged  in  classes,  the  front  rank  including  the  wealth- 
ier and  therefore  best  armed  class,  the  second  and  third  of  the 
grades  below  and  the  fourth  and  fifth  made  up  of  the  poorer 
citizens,  who  served  as  light  armed  troops.  The  cavalry  was 
similarly  dealt  with  and  drawn  from  the  most  opulent  citi- 
zens. Old  men,  unmarried  women  and  boys  holding  land, 
were  required  to  contribute  equipments  and  fodder  for  cer- 
tain ones.  Non-freeholders  had  to  supply  workmen  and 
musicians  for  the  army,  as  well  as  substitutes,  who  marched 
with  the  army  and  took  the  places  made  vacant  in  the  ranks 
by  illness,  death  or  other  cause.  For  the  purpose  of  making 
the  levy  the  city  and  its  suburbs  were  divided  into  four  parts, 
superseding  the  old  triple  division.  Each  quarter  contributed 
equally  one-fourth  part  of  the  whole  and  of  each  of  its  mili- 
tary subdivisions,  so  that  each  legion  and  century  was  made 
up  from  all  four  parts.  The  whole  military  population  was 
divided  into  a  first  and  second  levy,  the  first  or  juniors  in- 
cluding those  from  the  seventeenth  to  the  forty-sixth  year, 
who  were  usually  the  active  force,  while  the  seniors  acted  as 
home  guards.  The  military  unit  was  the  legion  of  3,000  men 
in  six  ranks,  to  which  were  attached  1,200  unarmed  velites. 
The  normal  force  consisted  of  16,800  men  in  the  infantry  and 
1,800  horse.  From  the  time  of  this  reorganization  it  was  the 
centuries  whose  consent  the  king  asked  before  waging  a  war 
of  aggression,  instead  of  the  assembled  patricians,  and  •  the 
centuries  who  authorized  the  testaments  of  soldiers  before 
going  into  battle.  Political  power  thus  came  to  be  exercised 
by  the  plehs  as  a  natural  sequence  of  their  assuming  the  bur- 
den of  military  service.     At  the  time  of  these  changes  the 


ROME  311 

population  and  territory  of  the  city  had  been  increased,  and 
included  probably  not  less  than  100,000  people.  From  the 
earliest  days  the  leading  characteristic  of  the  Roman  state 
was  its  military  spirit  and  superior  organization  for  war. 
Another  regulation  of  Servius,  which  continued  in  effect  till 
the  time  of  Justinian,  was  that  which  prescribed  the  mode  of 
transferring  the  title  to  lands,  houses,  rights  of  way,  aque- 
ducts, slaves  and  domestic  beasts  of  burden,  which  were  styled 
res  mancipi.  The  transfer  was  required  to  be  made  in  pres- 
ence of  five  citizens  as  witnesses  and  a  libripens  holding  a 
pair  of  scales.  The  vendee,  with  one  hand  on  the  thing  pur- 
chased or  a  symbol  of  it,  declared  it  his  by  purchase  with  a 
piece  of  money  which  he  held  in  the  other  hand,  and  with 
which  he  struck  the  scales  and  then  handed  it  to  the  seller  as 
symbolical  of  the  price  paid.  The  actual  weighing  out  of 
the  copper  before  coined  money  was  used,  or  payment  of  the 
whole  price  in  later  times,  does  not  seem  to  have  required  the 
presence  of  witnesses.  This  mode  of  transfer,  called  manci- 
pation, was  primarily  established  in  connection  with  the 
census,  in  order  that  the  ownership  of  property  might  be  defi- 
nitely established  and  the  classification  of  citizens  based  on  it 
secured  against  errors.  Other  forms  of  property  classed  as 
res  nee  mancipi  could  be  sold  and  title  given  by  delivery,  but 
a  full  title  to  res  mancipi  could  only  be  given  by  this  formal 
transfer  or  surrender  in  court.  A  similar  formality  was  soon 
adapted  to  other  forms  of  contract  including  emancipation, 
coemption  and  plebian  alienation  mortis  causa. 

While  the  date  of  the  foundation  of  Rome  is  generally 
fixed  about  753  B.C.  there  seems  but  little  on  which  to  base 
any  definite  statement  about  it.  The  kingly  form  of  govern- 
ment continued  till  the  reign  of  Tarquin  the  Proud,  who  was 
expelled  with  all  his  clan  by  the  Roman  people  because  of  his 
tyrannies.  This  occurred  about  the  close  of  the  sixth  century 
B.C.  The  wars  waged  by  him  to  recover  the  throne  ended 
with  the  battle  of  Lake  Regillus,  which  is  said  to  have  occur- 
red in  the  year  497  B.C.  and  to  be  the  first  authentic  date  in 
Roman  history.  However  this  may  be,  the  fact  of  expulsion 
is  undoubted,  and  that  the  people  had  become  so  thoroughly 


k 


s. 


312  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

disgusted  with  kingly  rule  that  they  swore  that  no  king  should 
ever  again  rule  in  Rome.  The  title  of  king  was  retained  for 
the  high  priest,  rex  sacroriim,  who  succeeded  only  to  some  of 
the  religious  functions  of  the  former  kings.  In  place  of  a 
single  king  two  consuls  were  chosen,  to  hold  office  jointly  for 
a  single  year.  They  were  elected  by  the  citizens  in  the  as- 
sembly, comitia,  of  the  centuries  from  among  the  patricians, 
formally  invested  with  authority  by  a  vote  of  the  curiae  and 
confirmed  by  the  senate.  Under  the  new  constitution  laws 
were  first  proposed  to  the  comitia  of  the  centuries,  and,  if 
adopted,  were  in  like  manner  approved  by  the  curiae  and  the 
senate.  The  consuls  succeeded  to  the  temporal  power  of  the 
kings,  and  each  of  them  possessed  these  rights  in  full  and 
became  a  check  on  the  other.  While  the  plebeians  thus  be- 
came admitted  to  a  share  in  naming  the  consuls  and  making 
the  laws,  the  actual  direction  of  affairs  was  still  in  the  hands 
of  the  patricians,  who  presided  in  the  comitia,  and  from  whose 
ranks  the  consuls  must  be  taken.  The  right  of  appeal  from 
capital  sentences  and  sentences  to  corporal  punishment  other- 
wise than  by  martial  law  was  no  longer  left  optional,  as  under 
the  kings,  but  was  made  absolute.  While  the  consuls  suc- 
ceeded to  the  judicial  powers  of  the  kings,  they  were  subject 
to  restrictions.  Causes  were  commenced  before  the  consuls, 
but  in  civil  cases  and  murders  prosecuted  by  the  quaestors  the 
consul  was  required  to  commit  to  trial  before  deputies  ap- 
pointed by  him. 

The  consuls  did  not  succeed  to  the  power  of  nominating 
the  priests  but  the  college  of  priests  filled  vacancies  in  their 
own  ranks  and  also  named  the  vestals  and  single  priests  and 
named  a  president,  the  Pontifex  maximus.  In  extraordinary 
emergencies  either  consul  had  power  to  name  a  dictator,  who 
exercised  the  full  power  of  both  consuls,  but  his  powers 
ceased  at  the  end  of  the  consulate  and  could  not  continue  for 
a  period  of  over  six  months.  In  war  he  commanded  the 
infantry  and  was  bound  to  name  a  master  of  the  horse,  who 
held  for  a  like  term. 

The  king,  holding  for  life,  had  been  above  accountability 
for  any  of  his  acts,  but  the  consuls  after  the  expiration  of 


ROME  313 

their  terms  of  office  were  subject  to  trial  for  offences  com- 
mitted against  the  law  as  other  citizens.  The  old  privilege  of 
the  king,  to  have  his  fields  cultivated  by  task  work  of  the 
citizens  and  protected  dwellers  in  the  city,  ceased  on  the 
termination  of  life  tenure.  With  the  change  in  the  constitu- 
tion the  power  of  the  citizens  enrolled  for  military  service  was 
further  increased,  and  the  assembly  of  the  centuries  became 
the  most  potent  political  body  in  the  state.  A  change  also 
took  place,  in  the  curiae,  which  thereafter  included  all  free- 
men of  the  city,  slaves  and  citizens  of  other  communities  who 
stood  in  the  situation  of  guest  of  the  city  being  the  only 
cka^es  excluded. 

X  The  senate  retained  in  the  main  its  former  powers  and 
composition,  but  was  no  longer  made  up  exclusively  from  the 
patrician  order.  Plebeians  were  admitted  under  the  name 
conscripti,  not  however  with  full  rights  as  senators.  The 
consuls  while  in  office  had  no  vote  in  the  senate.  They  filled 
vacancies  whether  from  among  the  patres  or  the  pkbeian  con- 
scripti, the  whole  number  of  both  still  remaining  300.  It 
became  the  custom  to  revise  the  roll  on  taking  the  census, 
which  occurred  every  fourth  year.  The  patricians  still  re- 
tained the  exclusive  eligibility  to  the  consulate  and  civil 
magistracies,  as  well  as  the  priesthood,  and  the  privilege  of 
joint  use  of  the  public  pastures.  The  practice,  commonly  fol- 
lowed under  the  regal  constitution,  of  consulting  the  senate  on 
matters  to  be  proposed  in  the  assembly,  became  a  settled  cus- 
tom, and  the  senate  also  gained  a  most  important  power  by 
taking  away  from  the  consuls  the  control  of  the  public  treas- 
ury and  putting  it  in  charge  of  two  subordinate  magistrates 
nominated  by  the  consuls.  The  expenditure  of  the  public 
rnoneys  could  only  be  made  with  the  consent  of  the  senate. 
On  the  whole  the  position  of  the  senate  was  strengthened  at 
the  expense  of  the  executive  head,  but  the  plebeians  also  gained 
advantages.  The  development  should  not  be  looked  at  from 
the  narrow  standpoint  of  advantage  to  one  class  or  the  other. 
Rome  was  a  growing  power,  and  the  elements  of  which  it 
was  composed  were  asserting  their  strength,  not  merely  in 
the  interests  of  their  respective  classes,  but  for  the'  advance- 


314  EVOLUTION    OF   GOVERNMENTS   AND   LAWS 

ment  of  the  whole.  Among  the  regulations  favorable  to  the 
poor  were  reductions  of  the  port  dues  on  grain  and  interven- 
tion of  the  state  to  secure  corn  and  salt  for  the  multitude  at 
reasonable  prices  through  state  monopoly.  A  singular  regu- 
lation with  reference  to  fines  was  that  which  prohibited  a 
magistrate  from  fining  the  same  man  on  the  same  day  to 
the  extent  of  more  than  two  sheep  or  thirty  oxen  without 
granting  leave  to  appeal;  thus  apparently  placing  the  poor 
shepherd  and  the  rich  herdsman  soniewhat  on  an  equality 
in  this  particular. 

In  the  collection  and  disposition  of  the  public  funds  the 
system  of  farming  the  revenue  was  adopted,  by  which  a  col- 
lector payed  a  fixed  sum  to  the  state  and  collected  in  his  own 
interest  from  the  people.  Public  works  were  also  carried  on 
through  contractors,  who  made  large  profits  on  the  labor 
employed.  The  use  of  the  public  lands  for  grazing  purposes 
was  claimed  by  the  patricians  as  their  right,  to  a  share  in 
which  however  some  wealthy  plebs  were  admitted.  This  had 
been  subject  to  the  payment  of  a  moderate  tax,  but  the  col- 
lection of  this  by  the  patrician  quaestors  was  gradually  omit- 
ted. When  new  domains  were  acquired,  it  had  been  the  cus- 
tom to  assign  the  tillable  land  to  the  poorer  people,  retaining 
the  rest  for  pasture.  A  system  grew  up  of  allowing  an  oc- 
cupant to  take  possession  for  an  undefined  term,  subject  to 
the  payment  of  one-tenth  the  grain  and  one-fifth  the  oil  and 
wine.  This  system  of  occupation  was  allowed  indefinite  ex- 
tension, and  naturally  inured  entirely  to  the  benefit  of  the 
ruling  classes,  and  the  collection  of  the  state's  share  was  also 
soon  neglected.  The  wealthy  citizens  became  farmers  on  a 
large  scale.  Small  land  owners,  who  were  heavily  burdened 
with  taxation,  fell  in  debt  and  under  the  power  of  their  credi- 
tors, which  was  greatly  abused.  On  their  return  from  a  suc- 
cessful war  under  the  dictatorship  of  Marcus  Valerius  the 
poor  landholders,  who  constituted  the  strength  of  the  army, 
demanded  mitigation  of  the  rigor  with  which  creditors  en- 
forced their  demands  and  other  reforms  in  the  government, 
and  refused  to  disband  until  their  rights  were  secured.  The 
senate  at  first  refused.     The  army  under  leadership  of  the 


ROME  315 

military  tribunes  went  into  camp  between  the  Tiber  and  the 
Aino  and  threatened  to  estabHsh  there  a  city  of  their  own. 
An  agreement  was  finally  made  granting  temporary  relief  to 
the  debtors  and  providing  for  some  of  the  poor  farmers  in 
colonies  that  were  established,  but  the  most  important  con- 
cession was  that  which  placed  by  the  side  of  the  two  patrician 
consuls  two  plebian  tribunes,  elected  by  the  plebians  assembled 
in  curies.  The  tribunes  were  given  the  power  to  nullify  the 
commands  of  the  consuls  by  a  protest  properly  tendered.  The 
tribunes  also  were  given  jurisdiction  to  try  and  determine 
criminal  causes,  and  in  case  of  an  appeal  from  their  decision 
the  right  to  defend  it  before  the  people.  They  also  had  the 
important  power  of  assembling  and  addressing  the  people  and 
submitting  resolutions  for  their  adoption.  The  tribunes  could 
not  prevent  the  other  magistrates  from  pronouncing  sentence, 
the  senate  from  adopting  a  decree,  or  the  centuries  from  giv- 
ing their  votes,  but  they  could  discharge  the  debtor  from  ar- 
rest and  exempt  the  citizen  from  enforced  military  service. 
That  the  aid  of  the  tribunes  might  be  always  accessible,  they 
were  prohibited  from  spending  a  night  out  of  the  city  and 
required  to  leave  their  doors  open  day  and  night.  They  could 
summon  any  citizen  before  them  for  trial,  even  a  consul  in 
office.  Their  process  was  served  by  two  aediles  appointed  to 
attend  them,  and  they  were  aided  by  ten  men  for  lawsuits, 
whose  precise  powers  cannot  be  stated.  An  appeal  from  the 
judgment  of  a  tribune  went,  not  to  the  whole  body  of  citi- 
zens, but  to  the  whole  body  of  plebians,  who  met  and  voted 
by  curies.  Only  against  a  dictator  were  the  tribunes  power- 
less to  interpose.  As  might  readily  be  foreseen  this  arrange- 
ment invited  conflict  of  authority  and  tended  to  violence  when 
partisan  spirit  was  high.  The  tribune  Gnaeus  Gemicius,  who 
had  called  the  two  consuls  to  account,  was  found  murdered 
in  his  bed  on  the  day  fixed  for  the  impeachment.  This  cir- 
cumstance led  to  the  passage  of  the  Publilian  law,  which 
provided  for  a  plebian  assembly  of  tribes  and  the  plebiscitum. 
The  plchs  had  theretofore  adopted  resolutions  by  curies,  vot- 
ing man  by  man  without  distinction  of  estate,  and,  as  the 
clients  of  the  patricians  were  entitled  to  vote  in  these,  the 


3i6  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

influence  of  the  patrician  clans  was  often  controlling.  The 
Roman  territory  was  now  divided  into  twenty-one  districts 
designated  as  tribes,  but  with  fixed  territorial  boundaries.  In 
the  tribes  the  voters  were  the  plebeian  freeholders  only,  each 
of  whom  had  one  vote,  no  matter  what  the  extent  of  his  hold- 
ing. Thus  the  patricians  and  residents  who  were  not  free- 
holders were  excluded.  The  enactments  of  these  meetings, 
when  previously  approved  by  the  senate,  had  the  force  of  law 
and  were  of  equal  validity  with  those  adopted  by  the  centuries. 
After  much  contention  and  many  proposals  of  reform,  about 
the  year  454  B.C.  a  Decemvirate  was  established  in  place  of 
the  consuls,  to  which  plebians  as  well  as  patricians  were  eligi- 
ble, and  the  tribunate  was  suspended  for  the  time.  An  em- 
bassy was  sent  to  Greece  to  obtain  the  laws  of  Solon,  and 
after  their  return  the  decemvirs  were  chosen,  all  of  whom 
were  patricians.  The  purpose  of  the  decemvirate  was  to  es- 
tablish a  written  code  of  laws  for  the  protection  of  the  people 
against  arbitrary  and  discretionary  power.  As  this  code  was 
not  completed  within  the  term  of  the  first  members,  a  second 
set  was  chosen,  including  some  plebeians.  The  product  of  the 
labors  of  these  officials  was  the  first  ten  of  the  famed  XII 
tables  of  the  Roman  law.  Others  were  chosen  the  following 
year,  who  added  the  other  two,  all  of  which  were  duly  ratified 
by  the  people  and  engraved  on  tables  of  copper  and  af^xed 
in  the  Forum  to  the  rostra  in  front  of  the  senate  house.  This 
famous  code  is  preserved  to  us  only  in  fragments,  gathered 
here  and  there  from  the  writings  of  men  of  later  times.  A 
summary  of  them  is  given  in  the  Appendix. 

How  much  or  how  important  the  omitted  parts  of  this 
famous  code  may  be  it  is  impossible  to  tell,  but  enough  is 
preserved  to  show  the  crude  and  barbarous  customs  of  the 
time  and  also  the  earnest  efifort  for  better  and  more  humane 
regulations.  For  punishments,  death,  bodily  injury  and  fines, 
for  the  collection  of  debts  the  person  of  the  debtor  was  seized, 
and  he  stood  on  the  level  of  a  criminal.  Slavery  was  recog- 
nized, yet  at  the  same  time  among  citizens  special  privileges 
were  prohibited.  Publicity  and  impartiality  in  all  trials  were 
enjoined.      The   truth   was   to   be   ascertained    from   witness 


ROME  ■  317 

and  without  torture.  There  is  a  tinge  of  superstition  here  and 
there  but  httle  sanction  for  priestly  tyranny.  Taken  as  a 
whole  it  exhibits  the  germs  of  the  system  of  written  laws, 
which  has  since  prevailed  throughout  Europe,  commingled 
with  the  crudities  and  barbarities  of  a  small  warlike  commun- 
ity, constantly  struggling  with  its  neighbors  for  existence. 
The  decemvirate,  having  completed  its  labors  in  the  enactment 
of  the  code,  was  not  gotten  rid  of  without  strife  and  turmoil. 
Consuls  and  tribunes  were  again  chosen,  and  it  was  decreed 
that  thereafter  every  magistrate,  even  a  dictator,  should  allow 
an  appeal  in  capital  cases.  The  tribunes  were  admitted  to 
share  in  the  discussions  of  the  senate,  and  any  resolution  of 
the  senate  or  assembly  might  be  arrested  by  them.  Soon  after 
445  B.C.  the  Canuleian  law  broke  down  the  strict  social  di- 
vision, which  had  been  maintained  between  the  orders,  and 
declared  marriages  between  patricians  and  plebeians  lawful  as 
true  Roman  marriages  and  that  the  children  should  take  the 
rank  of  the  father.  It  was  further  provided  that  in  place  of 
the  consuls  six  military  tribunes  should  be  chosen  with  the 
powers  and  for  the  terms  of  consuls.  As  under  the  military 
system  all  citizens  liable  to  military  service  were  eligible  to 
military  commands,  this  in  effect  opened  the  consular  office 
to  all  plebians  liable  to  service.  This  was  not  a  permanent 
arrangement,  but  year  by  year  there  was  a  struggle  to  de- 
termine whether  consuls  or  tribunes  should  be  chosen,  usually 
resulting  in  favor  of  the  latter.  In  435  B.C.  the  making  up 
of  the  census,  which  had  theretofore  been  the  province  of  the 
consuls,  was  entrusted  to  two  censors,  nominated  from  the 
patricians  by  the  centuries  for  a  period  of  not  more  than 
eighteen  months.  To  them  was  confided  the  power  to  fill 
vacancies  in  the  senate  and  even  to  remove  the  names  of  un- 
worthy ones  from  the  lists  of  senators  and  eqiiites.  There 
were  four  quaestors  in  charge  of  the  public  money,  two  for 
the  city  nominated  by  the  consuls,  and  two  for  the  army  by 
the  tribes,  but  all  taken  from  the  patricians.  In  421  B.C.  the 
nomination  of  the  city  quaestors  passed  to  the  assembly  of 
the  tribes,  the  consul  merely  superintending  the  election,  and 
plebeians  became  eligible.     Granting  eligibihty  was  not  equiv- 


3i8  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

alent  to  conferring  the  office,  and  the  patricians  still  con- 
tinued to  fill  most  of  the  magistracies.  The  wealthy  plebs 
struggled  to  advance  their  own  political  privileges  quite  as 
much  as  to  better  the  condition  of  the  poor.  There  were  not 
only  patricians  and  plebs,  but  among  the  plebs  there  were 
the  freeholders  and  the  proletarii,  and  beneath  all  the  slaves, 
who  were  without  political  rights  and  for  whose  welfare  as 
a  class  no  party  ever  labored.  During  the  struggle  between 
patricians  and  plebs  the  division  was  not  so  much  between 
rich  and  poor  or  between  freeholder  and  non-freeholder,  as 
between  patrician  privilege  on  the  one  hand  and  plebian  free- 
holders on  the  other,  but  the  plebeian  leaders  gave  some  heed 
to  the  cries  for  relief  coming  from  the  small  farmers  and 
laborers.  In  378  B.C.  the  tribunes  Gains  Licinius  and  Lucius 
Sextius  submitted  a  proposal,  first  to  abolish  the  consular 
tribunate  and  to  thenceforth  require  that  at  least  one  consul 
should  be  a  pleb;  second  to  open  to  the  plebians  admission  to 
the  priestly  college  of  custodians  of  oracles  and  to  increase 
the  membership  to  ten;  third  to  allow  no  citizen  to  maintain 
on  the  common  pasture  more  than  one  hundred  oxen  and  five 
hundred  sheep,  or  to  hold  more  than  five  hundred  jngera 
(about  three  hundred  acres)  of  the  domain  lands;  fourth  to 
oblige  landlords  to  employ  in  the  fields  free  laborers  in  pro- 
portion to  their  slaves;  fifth  that  debtors  should  be  allowed  a 
deduction  of  the  interest  which  had  beeri  paid  from  the  prin- 
cipal of  their  debts  and  terms  for  the  payment  of  the  balance. 
After  eleven  years  the  senate  yielded  and  these  proposals  were 
adopted.  Following  these  reforms  the  judicial  power  was 
detached  from  the  consuls  and  vested  in  a  special  officer,  the 
praetor,  and  the  supervision  of  the  markets,  the  police  duties 
connected  therewith  and  the  celebration  of  the  city  festival, 
were  conferred  on  two  newly  created  aediles,  called  by  way 
of  distinction  from  the  plebeian  aediles,  aediles  cuniles.  These 
offices  were  soon  opened  to  plebs  and  patricians  alternately, 
and  within  a  few  years  plebs  were  made  eligible  to  the  dicta- 
torship and  office  of  master  of  the  horse  and  to  both  censor- 
ships, and  the  patricians  by  law  excluded  from  one  censor- 
ship.    Through  these  various  offices  the  plebs  not  only  gained 


ROME  319 

admission  to  the  senate,  but  those  who  had  filled  the  offices 
of  consul,  praetor  and  ciirule  aedile  were  summoned  to  give 
their  opinions  on  matters  before  the  senate  in  the  order  named, 
whether  plebs  or  patricians,  and  the  other  senators  merely 
voted  on  the  division.  Afterward  the  priestly  colleges  of 
pontifices  and  augurs  were  opened  to  the  plebs.  The  senate 
lost  its  veto  power  on  laws  passed  by  the  assembly,  and  at 
length  it  was  provided  that  decrees  of  the  plebs  should  have 
equal  force  with  those  of  the  whole  people.  This  happened 
about  286  B.C.  and  witnessed  the  termination  of  the  main 
contention  between  plebs  and  patricians.  It  had  previously 
been  enacted  (339  B.C.)  that  the  senate  should  give  its  sanc- 
tion to  all  laws  before  submission  to  the  people,  which  in  a 
bt;ief  time  practically  deprived  the  senate  of  its  veto. 

The  Roman  government  as  thus  constituted,  and  as  it  con- 
tinued without  substantial  change  till  the  time  of  the  Caesars, 
vested  the  law-making  power  in  three  popular  bodies,  either 
one  of  which  exercised  its  powers  without  action  by  the  other, 
and  each  of  which  included  in  its  membership  a  large  propor- 
tion of  the  members  of  the  other  bodies.  These  were  the 
comitia  of  the  centuries  which  corresponded  with  the  soldiery 
acting  in  their  civil  capacity,  the  concilium  plebis,  made  up  of 
the  whole  body  of  the  plebs,  voting  by  tribes,  and  the  comitia 
trihiita  of  the  whole  body  of  the  people,  also  voting  by  tribes. 
The  membership  of  the  comitia  of  the  centuries  was  based  on 
a  property  qualification,  that  of  the  other  bodies  was  not. 
This  body  at  first  could  be  convened  and  presided  over  only 
by  a  consul,  but  afterward  the  censors  had  power  to  convoke 
it  for  matters  relating  to  the  census  and  the  praetor  for  state 
trials.  The  procedure  in  the  passage  of  a  law  by  the  comitia 
of  the  centuries  by  which  the  XII  tables  were  enacted  was, 
first  publication  of  the  proposed  law  two  weeks  before  the  day 
appointed  for  the  vote,  during  which  time  meetings  were 
sometimes  held  for  its  discussion;  second,  on  the  appointed 
day  the  auspicia  were  taken  by  the  presiding  magistrate,  as- 
sisted by  an  augur  which,  if  favorable,  were  followed  by  sum- 
moning the  people  by  blast  of  the  trumpet  to  attend  prayer 
and  sacrifice  offered  by  the  president,  pontiffs  and  augurs.     A 


320  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

final  discussion  might  then  follow,  at  the  conclusion  of  which 
the  citizens  marched  to  the  Campus  Martius  where  the  call 
was  read  and,  if  no  portent  from  heaven  intervened,  the 
question  was  then  put,  ''Is  it  your  pleasure  Quirites  to  hold 
this  as  law."  The  vote  was  taken  by  centuries,  those  of  the 
knights  and  freeholders  of  full  valuation  being  taken  first. 
If  these  were  unanimous  the  vote  went  no  farther,  as  they 
constituted  a  majority.  Prior  to  the  Publilian  law  the  con- 
sent of  the  senate  was  still  necessary,  but  afterward  it  was 
not.  In  the  concilium  plebis  it  was  not  necessary  to  consult 
the  gods  by  taking  the  auspicia.  It  could  be  convened  and 
presided  over  by  a  tribune  or  an  aedile,  and  its  resolutions  re- 
quired no  confirmation  by  the  senate. 

The  comitia  tributa  was  convened  by  a  patrician  magistrate, 
and  before  it  could  proceed  the  auspicia  had  to  be  taken  and  its 
enactments  required  confirmation  by  the  senate.  When  so 
confirmed  they  bound  the  whole  people,  while  those  of  the 
concilium  plebis  bound  plebs  only  until  after  the  Hortensian 
law.  The  struggle  of  the  classes,  through  which  the  govern- 
mental system  was  evolved,  was  contemporaneous  with  the 
struggle  with  external  foes  through  which  the  number  of  the 
people,  the  possessions  and  power  of  the  state  steadily  ad- 
vanced. From  a  kingly  government  of  a  small  community, 
based  on  the  idea  of  absolute  paternal  authority,  a  populous 
state  was  formed  with  the  power  of  making  laws  definitely 
lodged  in  the  mass  of  the  people;  with  the  idea  of  written 
law  to  settle  private  rights  and  direct  the  action  of  ofificials 
clearly  comprehended  and  adhered  to,  and  with  a  distribution 
of  powers  among  executive,  administrative  and  judicial  of^- 
cers  designed  to  render  one  a  check  on  another.  Publicity  in 
trials  and  the  right  of  appeal  were  shields  against  the  arbi- 
trary exercise  of  power;  but  more  than  this  the  brief  terms  of 
of^cers,  in  whom  the  powers  most  subject  to  abuse  were  con- 
fided, made  systematic  tyranny  impossible,  though  it  could 
not  prevent  instances  of  it.  That  this  security  might  not  be 
impaired  by  successive  elections,  it  was  ordained  342  B.C., 
that  the  same  person  should  not  again  administer  the  of^ce 
until  after  an  interval  of  ten  years.     This  rule  was  not  rigidly 


ROME  321 

enforced,    however,    but    in    extraordinary    emergencies    was 
disregarded. 

The  long  struggle  between  classes  resulted  in  overthrowing 
the  exclusive  privileges  of  the  patricians  and  in  wresting  the 
power  to  make  laws  from  the  representatives  of  that  order, 
but  instead  of  weakening  the  influence  of  the  senate,  it  greatly 
strengthened  it.     A  senate  made  up  of  the  heads  of  patrician 
houses  only  would,  in  a  state  rapidly  increasing  in  population 
from  the  elements  absorbed  by  the  plebeians,  not  only  have 
become  less  representative  and  therefore  less  influential,  but 
would   inevitably   have   lost   its   vigor  by   reason   of   its   ex- 
clusiveness.     The  opening  of  the  senatorial  list,  not  only  to 
plebeians  who  were  elected  to  the  principal  offices,  but  also 
to   such  citizens   of   distinction  as  the  censors  might  name, 
made  of  the  senate  a  body  which  included  the  most  vigorous 
and  influential  men  to  be  found  in  the  state.     Distinction  in 
public  service,  as  well  as  family  and  wealth,  gave  access  to 
a  seat  in  it.     It  was  the  only  select  political  body  in  which 
affairs  of  state  were  discussed  and  policies  formulated.     Sub- 
stantially  all   important   public   measures,    aside    from   those 
which  were  the   subject   of   dispute   between   patricians   and 
plehs,  were  first  aired  and  formulated  in  the  Senate.     It  was 
the  senate  that  proposed  general  policies  for  the  advancement 
of  the  power  of  Rome.     It  supervised  the  administration  of 
affairs  at  home  and  in  the  colonies  and  subject  communities. 
It  determined  all  questions  relating  to  war,  peace,  alliances,  the 
founding  of  colonies,  the  allotment  of  lands,  the  erection  of 
buildings  and  the  system  of  finance.     It  issued  annually  gen- 
eral  instructions  to  the   magistrates,   fixing   the   number   of 
troops  and  amount  of  money  at  the  disposal  of  each.     The 
treasurers  could  make  no  payment  to  a  magistrate  other  than 
a  consul  except  on  the  order  of  the  senate.     Even  the  power 
of  the  tribunes  was  finally  turned  to  strengthen  the  position 
of  the  senate,  after  they  were  admitted  to  seats  in  it  and  to 
take  part  in  its  deliberations.     Though  the  senate  was  not 
strictly  an  elective  body,  and  though  its  members  continued 
for  life,   its   ranks   were  constantly   recruited    from   consuls, 
praetors,   aediles   and   other   magistrates,    whose   merits   had 


322  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

been  recognized  by  the  people,  and  who  took  their  seats  by 
virtue  of  that  recognition.  The  Senate  under  the  kings  was 
an  assembly  of  elders,  whom  the  kings  were  accustomed  to 
consult  rather  for  the  inherent  value  of  their  counsel  than  on 
account  of  any  obligation  to  follow  it,  and  though  we  no- 
where find  any  enactment  formally  conferring  powers  on  the 
senate  after  the  expulsion  of  the  Tarquins,  it  little  by  little 
assumed  and  exercised,  as  its  prerogatives,  those  powers  which 
were  not  lodged  elsewhere/  The  people  were  its  superiors  so 
far  as  the  power  to  pass  laws  was  concerned,  but  the  field 
actually  covered  by  their  enactments  was  narrow  as  compared 
with  the  vast  range  of  subjects  of  which  the  senate  took  cog- 
nizance. Even  where  a  law  of  the  people  existed,  the  senate 
sometimes  swept  it  aside  for  the  time  being,  if  it  stood  in  its 
way.  Thus  the  political  head  of  Rome  from  the  end  of  the 
monarchy  till  the  establishment  of  the  empire  was  the  senate. 
Under  its  guidance  the  leadership  of  Rome  was  first  extended 
over  Latium,  then  step  by  step  over  Italy  and  afterward  over 
all  the  countries  comprising  its  vast  empire. 

The  struggles  of  Rome  with  the  other  Latin  communities 
began  in  its  infancy,  when  it  was  not  marked  out  as  first  in 
power.  In  time  it  conquered  Alba,  which  had  theretofore 
been  the  chief  town  of  the  Latins.  The  earliest  union  of 
other  Latin  communities  with  Rome  was  not  as  subjects  nor 
as  an  integral  part  of  a  single  state,  but  as  allies  on  something 
like  equal  terms,  and  at  length  with  the  confederated  Latins  as 
one  party  to  the  compact  and  Rome  as  the  other.  The  citi- 
zens of  each  community  were  accorded  equality  of  right  to 
acquire  land  and  chattels,  to  trade  and  marry  in  any  other. 
This  relation,  formed  during  the  existence  of  the  monarchy, 
continued  under  the  republic.  With  the  growth  of  Rome  the 
relative  importance  of  the  smaller  communities  diminished  and 
all  leadership  centered  in  Rome,  which  gathered  to  itself  the 
urban  elements,  the  trades  and  industries  which  naturally 
centered  in  a  city.  The  limits  of  the  city  were  extended  as 
a  necessary  consequence  of  its  increase  in  population,  and 
the  number  of  tribes  increased  from  four  covering  the  ancient 
wards  of  the  city,  to  twenty-one  spreading  over  rural  districts. 


ROME  323 

By  the  terms  of  the  compact  between  the  confederacy  and 
Rome  they  shared  equally  in  lands  acquired  by  conquest,  and 
thus  the  boundaries  of  each  were  contemporaneously  extended, 
but  about  384  B.C.  the  limits  of  the  confederacy,  which  then 
included  thirty  voting  members,  were  closed,  and  a  policy, 
thereafter  steadily  pursued,  was  inaugurated,  by  which  new 
communities  were  prohibited  from  aUiance  and  intercourse 
with  each  other  and  bound  as  closely  as  possible  to  Rome. 
Roman  citizenship  was  conferred  on  those  in  new  settlements 
or  acquisitions  in  preference  to  the  priviliges  enjoyed  by  the 
Latin  communities. 

yThe  leadership  of  Rome,  which  at  first  carried  with  it  no 
dominion  over  the  allies,  little  by  little  was  converted  into 
rulership,  so  far  as  all  matters  relating  to  external  policy  were 
concerned.  The  creation  of  new  communities  allied  to  the 
Latin  confederacy  would  have  stood  in  the  way  of  the  ex- 
tension of  the  dominion  of  Rome.  From  the  settlements  on 
the  Roman  hills  proceeded  other  neighboring  settlements,  to 
whose  members  the  full  rights  of  Roman  citizens  were  ac- 
corded. By  treaties  or  decrees  the  right  of  full  citizenship 
was  conferred  on  subjugated  towns  and  new  settlements  more 
distant  from  the  city.  Revolts  of  some  Latin  towns  were 
punished  by  taking  from  them  their  separate  organizations  and 
incorporating  them  as  integral  parts  of  the  Roman  state. 
There  were  other  communities  on  which  were  conferred  Ro- 
man citizenship  without  the  right  of  suffrage.  They  were 
entitled  to  all  the  legal  rights  and  protection  of  other  citizens, 
and  alike  subject  to  military  service,  but  merely  could  not  vote 
or  hold  office.  Other  people,  attached  to  Rome  as  a  result 
of  war,  were  granted  rights  and  ruled  in  such  manner  as 
might  be  determined  by  treaty  or  by  the  Romans.  There  were 
thus,  during  the  extension  of  the  power  of  Rome  over  Italy, 
four  classes  of  communities:  i.  Roman  with  full  Roman  citi- 
zenship; 2.  Latins  with  municipal  freedom  and  governments 
corresponding  in  form  to  that  of  Rome,  but  in  all  matters  of 
foreign  policy,  of  peace  and  war,  under  the  guidance  of  Rome, 
and  prohibited  from  all  alliances  within  or  without;  3.  com- 
munities whose  members  were  citizens  sine  suffragio,  included 


324  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

in  the  census,  but  neither  entitled  to  vote  or  hold  office ;  4.  non- 
Latin  communities  with  varying  rights  depending  on  treaties 
or  Roman  decrees.  The  third  of  these  classes  disappeared 
about  the  time  of  Hannibal's  wars,  being  either  granted  full 
citizenship  or  entirely  deprived  of  it.  In  after  time  the  Ro- 
man franchise  was  more  and  more  sparingly  conferred.  With 
the  extension  of  Roman  power  throughout  Italy  there  was 
neither  direct  administration  of  local  affairs  by  officers  ap- 
pointed at  Rome,  except  prefects  named  by  the  praetor  for 
Roman  colonies,  nor  representation  of  the  different  cities  and 
states  in  the  central  government  at  Rome.  Neither  did  Rome 
exercise  the  power  of  direct  taxation  in  the  conquered  dis- 
tricts, but  the  institutions  of  the  various  communities  were 
moulded  into  accord  with  those  of  Rome,  and  local  govern- 
ment was  administered  by  local  authority.  Those  persons  and 
communities  enjoying  full  citizenship  might  exercise  it  as 
members  of  the  tribes  and  centuries  at  Rome,  but  not  through 
any  system  of  representation.  The  struggle  between  the  dif- 
ferent orders,  through  which  the  plebs  gained  the  power  to 
make  laws,  had  no  permanent  effect  tending  to  improve  the 
situation  of  the  poor  and  middle  classes.  The  differentiation 
of  rich  from  poor  went  on  during  the  period  of  Rome's  great 
successes  with  constantly  increasing  speed.  The  poison  of 
slavery,  fostered  and  perpetuated  by  successful  wars  through 
which  the  slave  market  was  constantly  supplied,  lay  at  the 
foundation  of  the  industrial  and  commercial  system.  The 
burdens  of  war  fell  mainly  on  the  small  farmers.  The  privi- 
leged classes  extended  their  possessions  and  pastured  their 
herds  and  flocks  on  the  public  lands  wrested  from  newly  sub- 
jugated people.  The  earnings  of  slaves  bought  more  slaves 
for  the  rich,  while  competition  with  slave  labor  and  the  ex- 
tortions of  usurers,  who  multiplied  with  great  rapidity,  placed 
the  small  farmer  or  tradesman  between  the  upper  and  nether 
millstone.  From  the  multitude  of  ruined  farmers  and  traders 
and  their  descendants,  recruited  by  freedmen,  there  was  de- 
veloped that  vast  mass  of  poor  and  dependent  citizens,  for 
whose  benefit  the  senate  deemed  it  wise  to  provide  cheap  bread 
and  amusements.     The  gains  of  the  common  people  in  the 


ROME  325 

system  of  government  were  theoretical,  while  the  aristocracy 
seized,  exercised  and  retained  an  increased  measure  of  power. 
With  the  extension  of  the  field  of  operation  of  the  armies 
changes  in  the  military  system  were  inevitable.  Whereas,  in 
the  early  days  an  army  was  made  up  of  the  citizens  commanded 
by  a  consul,  going  forth  to  fight  some  near  enemy  during  a 
brief  campaign  and  then  returning  to  the  ordinary  peaceful 
avocations,  distant  campaigns  required  longer  terms  of  ser- 
vice and  rendered  it  impracticable  to  recall  and  disband  the 
army  within  the  year  of  service  of  the  consul.  It  therefore 
became  the  practice  to  extend  the  command  of  the  consuls 
engaged  in  distant  wars  beyond  the  year,  and,  in  place  of  a 
citizen  soldiery  equipped  at  their  individual  expense,  it  be- 
came necessary  to  have  paid  legions.  With  the  multiplication 
of  distant  provinces,  requiring  the  presence  of  armies  to  pro- 
tect the  frontier  and  repress  insurrections,  proconsuls  were 
appointed  and  continued  in  command  for  such  periods  as  the 
senate  determined.  For  the  administration  of  the  law  dis- 
tricts were  established,  to  each  of  which  a  prefect  was  sent, 
who  was  a  judicial  officer  at  the  head  of  the  civil  adminis- 
tration of  the  law.  Strictly  local  affairs  were  everywhere  sub- 
ject to  municipal  authority  in  the  cities  and  Roman  colonies, 
and  local  customs  were  not  disturbed,  except  for  strong  rea- 
sons. Alliances  were  formed  with  native  rulers,  wherever 
the  interests  of  Rome  could  be  advanced  thereby,  and  the  set- 
tled foreign  policy  was  expressed  by  the  maxim,  "divide  and 
rule."  To  this  end  republican  Rome  did  not  hesitate  to  ally 
itself  with  kings  and  arbitrary  rulers,  wherever  such  alliances 
appeared  useful  in  its  struggle  with  an  aristocracy  like  that 
of  Carthage.  With  the  extension  of  Roman  power  the  pos- 
sessions of  the  patricians  and  wealthy  plebeians  were  extended, 
and  their  estates  spread,  not  only  over  newly  acquired  dis- 
tricts in  Italy,  but  into  distant  provinces.  The  money  lenders 
also  followed  in  the  wake  of  the  armies,  wherever  the  author- 
ity of  praetor  and  prefect  could  be  depended  on  to  enforce 
the  payment  of  usury.  With  the  administration  of  govern- 
ment in  distant  provinces  inhabited  by  alien  people,  that  high 
sense  of  public  duty  and  strictness  of  integrity  for  which  the 


326  EVOLUTION    OF    GOVERNMENTS    AND    LAWS 

early  Romans  were  distinguished  disappeared,  and  officials 
returned  to  Rome  with  vast  wealth  extorted  from  them. 
These  evils  became  so  great,  that  in  149  B.C.  a  special  court 
was  established  for  the  trial  of  cases  of  official  extortion  in 
the  provinces,  the  jurisdiction  of  which  was  subsequently  ex- 
tended to  cases  of  treason  and  bribery.  The  ancient  system 
of  serving  the  state  in  all  public  stations  without  pay,  though 
still  continued  at  home,  thus  had  engrafted  on  it  a  most  cor- 
rupt and  corrupting  system  of  public  service  in  the  provinces. 

Under  the  constitution  above  described,  with  the  theoretical 
power  of  lawmaking  and  election  of  officers  in  the  hands  of 
the  common  people,  but  the  actual  direction  of  affairs  in  the 
senate,  the  power  of  Rome  was  extended  throughout  Italy, 
the  Punic  wars  were  waged  and  Carthage  destroyed  in  146 
B.C.  As  incident  to  the  struggle  with  Carthage  Sicily  and 
Spain  were  reduced  to  Roman  provinces,  and  on  its  final  de- 
struction its  territory  was  also  ruled  directly  from  Rome. 
Toward  the  east  Rome  did  not  at  first  seek  to  establish  a 
political  dominion,  but  sought  alliances  and  commercial  rela- 
tions. The  encouragement  given  the  Carthaginians  under 
Hannibal  by  the  king  of  Macedon  led  to  war,  first  with  Philip 
and  afterward  with  his  son  Perseus,  resulting  in  his  total 
defeat  and  capture  by  AemiHus  Paulus  168  B.C.,  but  Macedon 
was  not  reduced  to  a  Roman  province  till  146  B.C.  The  first 
appearance  of  the  Romans  in  Greece  was  as  friends  and  allies 
against  Macedon,  and  on  the  first  overthrow  of  the  Macedon- 
ian power  the  Greeks  were  liberated  to  their  great  delight,  but 
their  internal  dissensions  soon  led  to  the  establishment  of  the 
usual  provincial  system. 

With  the  rapid  extension  of  Roman  power  on  the  three 
continents  came  a  correspondingly  rapid  development  of  social 
disorders.  The  Roman  republic  had  been  developed  as  a 
municipal  system  for  the  protection  and  well  being  of  a  com- 
paratively small  state.  Its  first  extensions  of  influence  were 
over  other  cities,  similarly  organized,  to  which  substantial 
equality  was  accorded;  but  with  the  rapid  extension  of  empire 
Rome  as  a  central  power  dictated  to  the  known  world.  It 
was  no  longer  an  association  of  freemen,  differing  somewhat 


ROME  327 

in  rank,  but  closely  allied  in  interest  and  sentiment,  but  a  city 
containing  a  vast  mixed  population,  drawn  from  many  na- 
tions, most  of  whom  were  poor,  ignorant  and  brutal,  and  a 
numerous  aristocracy  of  great  wealth,  despising  all  labor 
and  laborers.  Avarice  and  greed  of  power  became  the  rul- 
ing passions  of  the  nobility.  The  proconsuls  and  prefects, 
who  returned  after  the  exercise  of  ill-defined  and  unrestrained 
powers  in  the  provinces,  despised  the  rabble  of  the  city,  and 
were  impatient  of  the  authority  of  the  senate.  Ill-gotten  gains 
were  lavished,  when  occasion  required,  to  corrupt  the  multi- 
tude, and  mercenary  legions  ceased  to  have  the  feelings  or  the 
interests  of  the  ancient  citizen  soldiery,  but  followed  their 
favorite  leaders  without  regard  to  law  or  justice.  Moral  de- 
basement of  Roman  society  preceded  the  disorders  which  re- 
sulted in  the  overthrow  of  the  republic.  The  efforts  of  the 
Gracchi  to  curb  the  power  of  the  rich  and  afford  relief  to  the 
multitude,  were  not  productive  of  permanent  results,  and  cost 
them  their  lives.  Marius,  though  one  of  the  common  people 
and  six  times  chosen  consul  by  them,  was  a  soldier,  and  at 
last  he  swept  away  the  ancient  system  of  organization  of  the 
legions  and  substituted  voluntary  enlistment  for  compulsory 
levy.  The  revolt  of  the  Italians  resulting  in  the  social  war, 
which  occurred  90  B.C.,  was  the  beginning  of  those  disorders 
which  finally  resulted  in  the  empire.  The  legions  under  Sulla 
and  the  grant  of  the  Roman  franchise  to  citizens  of  allied 
communities  domiciled  in  Italy  overcame  the  resistance  in  the 
provinces,  but  Sulla  returned  to  Rome  at  the  head  of  his 
legions,  and  for  the  first  time  in  the  history  of  the  city  public 
measures  were  dictated  and  carried  by  military  power.  The 
substitution  of  violence  for  the  ancient  peaceful  vote  evi- 
denced the  decay  of  patriotism,  and  soon  after  Sulla's  de- 
parture for  Asia  at  the  head  of  his  legions  the  new  citizens, 
who  sought  to  exercise  the  franchises  bestowed  on  them,  were 
attacked  in  the  forum  by  an  armed  force,  acting  under  orders 
of  the  consul  Octavius,  and  great  numbers  of  them  slain.  In 
place  of  the  government  of  law  there  had  come  the  sway  of 
military  power. 

From  the  ascendency  of  Sulla  to  that  of  Caesar  the  military 


328  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

leaders  ruled  in  fact,  using  constitutional  forms  only  as  a 
means  of  acquiring  arbitrary  powers.  In  the  early  period  of 
the  development  of  military  rule  the  leaders  sought  independ- 
ent commands  in  the  great  provinces,  by  which  they  became  in 
fact  dictators  over  vast  territories,  supported  in  the  exercise 
of  unlimited  powers  by  Roman  troops.  Having  become  ac- 
customed to  the  exercise  of  unrestrained  power  abroad,  they 
did  not  brook  constitutional  restraints  at  home.  Sulla  gained 
the  command  in  Asia  by  the  aid  at  Rome  of  the  legions  he 
commanded  in  the  Social  war.  After  his  departure  Cinna  and 
Marius  returned  with  their  armed  followers  to  wreak  ven- 
geance on  their  enemies  and  overawe  the  senate.  Sulla  on  his 
return  from  Asia  crushed  his  adversaries  and  barbarously 
murdered  great  numbers.  The  outbreak  in  73  B.C.  under 
Spartacus  and  the  conspiring  of  Catiline  were  but  evidences 
of  the  decay  of  constitutional  government.  The  senate, 
though  led  by  so  brilliant  an  orator  as  Cicero,  had  lost  its 
moral  ascendency,  and  adopted  the  low  expedient  of  calling 
on  one  usurper  to  put  down  another.  Pompey's  power  and 
ambition  developed  in  the  command  of  Spain,  followed  by  a 
dictatorship  over  the  Mediterranean  Sea  and  its  coasts  for 
the  extirpation  of  piracy.  The  alliance  of  Caesar,  Crassus  and 
Pompey  resulted  in  the  confirmation  of  Pompey's  power  in 
Asia  and  a  five  years'  lease  of  power  to  Caesar  in  Gaul  and 
lUyricum.  In  55  B.C.  Caesar's  command  was  renewed  for 
another  five  years.  Pompey  received  Spain  and  Africa  and 
Crassus,  Syria.  On  his  return  in  49  and  the  flight  of  Pompey 
Caesar  assumed  the  whole  power.  The  government  had  been 
in  a  stage  of  transition  for  half  a  century,  but  it  was  not  of 
the  kind  that  had  gone  on  during  the  prior  history  of  the 
state.  There  was  comparatively  little  agitation  of  theories  of 
government,  of  rights  of  classes,  or  of  official  powers.  Mili- 
tary leaders  sought  great  commands,  and  having  gained  them 
perpetuated  and  extended  their  power  by  the  use  of  the  legions 
under  them.  It  was  a  mere  exercise  of  usurped  authority, 
backed  by  military  force  accustomed  to  obey  the  leaders'  com- 
mands. There  was  no  independent  and  vigorous  force  in  the 
state,  competent  to  formulate  and  maintain  anything  like  a 


ROME  329 

just  public  sentiment  of  controlling  influence.  The  senate 
divided  into  factions  attached  to  the  contending  military  lead- 
ers. The  great  multitude,  being  without  property,  were  in- 
capable of  steady,  united  effort  to  accomplish  any  reform 
beneficial  to  themselves,  and  were  in  fact  too  brutal  and  igno- 
rant to  appreciate  justice  or  virtue.  The  one  conspicuous  and 
appalling  fact,  which  accounts  for  all  the  political  evils  from 
which  Rome  suffered,  was  the  general  and  all  pervading  moral 
debasement  of  the  people.  Among  the  wealthy  classes  gross 
sensuality  was  the  rule.  The  marriage  bond,  which  in  the 
early  days  had  been  regarded  as  of  peculiar  sanctity,  was 
treated  as  a  mere  matter  of  convenience,  and  we  read  of  all 
sorts  of  divorces  and  exchanges  of  wives  among  the  patri- 
cians. The  strength  of  the  social  system  of  Rome  had  cent- 
ered around  the  family  lares  et  penates,  and  the  close  tie 
which  held  husband  and  wife,  parent  and  child,  together. 
Laxity  of  the  bond  which  holds  man  and  wife  together  and 
laxity  of  morals  are  inseparable.  Without  purity  and  in- 
tegrity in  the  homes  there  is  no  basis  for  virtue  in  the  state. 
Slavery,  in  itself  utterly  immoral,  is  naturally  productive  of 
allied  evils.  The  great  houses  of  Rome  rested  on  the  support 
of  slaves.  Labor  in  all  its  forms  was  regarded  as  fit  for 
slaves  only.  To  earn  money  by  any  useful  employment  was 
to  incur  disgrace  and  social  ostracism.  In  their  amusements 
the  Romans  exhibited  in  strong  light  their  moral  depravity. 
The  savage  games  and  gladiatorial  contests  educated  the  multi- 
tude to  brutality.  The  great  mass  of  paupers,  who  yet  were 
not  slaves,  were  raised  under  a  system  which  rendered  it  not 
only  disgraceful  to  work  but  of  very  little  profit.  To  fight  in 
the  arena  or  in  the  legions  offered  the  best  rewards.  As  it 
had  departed  step  by  step  from  the  path  of  virtue,  the  republic 
had  lost  its  vitality.  Freedom  cannot  possibly  exist  without 
justice.  In  looking  for  the  cause  of  the  overthrow  of  the 
Roman  republic  various  phases  of  the  situation  are  given 
special  prominence  by  different  ones,  but  the  plain  fact  is 
apparent,  that  moral  degradation  was  all  sufficient  to  produce 
every  disorder. 

Caesar  appears  to  have  been  not  worse,  but  rather  better, 


330  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

than  the  average  of  his  contemporaries.  After  he  crossed  the 
Rubicon  he  proceeded  to  restore  order  without  resorting  to  the 
butchery  of  Pompey's  followers  or  confiscation  of  their  prop- 
erty. In  this  he  showed  his  superiority  to  Sulla  and  Marius. 
He  did  not  ostensibly  change  the  constitution,  but  he  in  fact 
seized  full  sway  and  ruled  nominally  as  a  constitutional  dic- 
tator, but  without  limitation  of  time.  The  style  of  perpetual 
dictator  implied  a  suspension  of  all  limitations  on  his  power 
during  life.  While  he  sought  to  restore  prosperity  and  re- 
lieve individual  distress  by  allotments  of  lands  to  his  old 
soldiers,  by  the  colonization  of  Carthage  and  Corinth,  by 
stimulating  settlements  and  improvements  in  the  decaying 
towns  and  on  the  public  lands  of  Italy,  by  draining  the  Fucine 
Lake  and  the  Pomptine  Marshes  and  other  like  works,  he  yet 
dissolved  the  popular  political  clubs  and  guilds,  curtailed  the 
free  distribution  of  corn,  and  abolished  the  popular  element  of 
the  judiciary.  He  assumed  the  title  ''imperator"  and  ruled 
through  his  ''legates,"  admitting  no  check  or  negative  of  his 
commands  by  any  authority.  In  form  the  old  system  con- 
tinued and  officers  exercised  their  functions  as  of  old.  The 
senate  met,  deliberated  and  resolved,  the  assembly  passed  laws 
and  elected  magistrates.  There  were  consuls,  praetors,  trib- 
unes, aediles,  and  quaestors  as  of  yore,  but  there  was  one  su- 
preme will,  to  which  all  opposition  must  yield,  that  of  Caesar. 
He  transformed  the  senate  by  raising  its  numbers  to  nine 
hundred  and  including  in  its  list  his  old  soldiers,  sons  of  freed- 
men,  and  even  Gauls.  He  finally  severed  all  authority  over 
the  provinces  from  the  Roman  comitia  and  exercised  his  abso- 
lute power  through  his  appointees.  At  Rome,  as  in  the  prov- 
inces, the  officials  chosen  by  the  people  were  limited  to  the 
exercise  of  municipal  authority.  He  established  in  Italy  a 
uniform  system  of  municipal  government,  which  his  succes- 
sors extended  throughout  the  empire.  His  brief  rule  from 
49  to  44  B.C.  was  long  enough  to  give  definite  form  to  the 
changed  system  of  Roman  government,  and  to  confer  on  him 
the  title  of  founder  of  the  empire,  although  a  period  of  civil 
war  and  turmoil  and  the  division  of  the  empire  among  the 
triumvirs  intervened  before  the  government  became  settled 
under  Augustus. 


ROME  331 

Octavius  after  the  overthrow  of  Anthony  at  Actium  pro- 
ceeded to  so  reconstruct  the  government  as  to  retain  all  ulti- 
mate authority  in  his  own  hands,  while  preserving  the  forms 
of  the  republic.  He  did  not  lay  claim  to  authority  derived 
from  a  source  above  or  outside  the  people.  On  the  contrary 
he  took  his  extraordinary  powers  by  grant  of  the  people  and 
under  names  and  forms  familiar  to  the  republic.  On  the  re- 
storation of  peace  in  28  he  resigned  the  dictatorial  powers, 
which  he  had  held  through  the  civil  war,  and  handed  over  the 
republic  to  the  control  of  the  senate  and  people.  The  senate, 
assembly  and  magistrates  resumed  their  functions.  By  decree 
of  the  senate  Octavius  was  granted  the  proconsulor  authority 
over  all  the  provinces  in  which  there  was  any  military  force, 
the  supreme  command  of  all  the  land  and  naval  forces  of  the 
empire,  with  full  power  to  recruit,  pay  and  dismiss  soldiers, 
equip  fleets,  wage  war  and  make  treaties.  This  authority 
was  given  at  first  for  ten  years.  The  power  did  not  differ  in 
character  from  that  which  had  long  before  been  habitually 
conferred  on  proconsuls  in  limited  territories  for  shorter 
periods.  In  23  the  governors  of  all  the  provinces  were  subor- 
dinated to  him,  and  he  was  exempted  from  the  ancient  law 
requiring  a  proconsul  to  lay  down  his  power  on  entering  Rome, 
and  was  allowed  to  bring  into  the  city  his  prefects  and  prae- 
torian guards  and  exercise  his  proconsular  powers  from  the 
city.  This  grant  of  power  was  formally  renewed  for  subse- 
quent periods  of  five  and  ten  years.  In  Rome  the  proconsuls 
hnperiiim  carried  preeminence  and  the  right  to  take  his  seat 
between  the  consuls,  to  be  attended  by  lictors,  wear  the  laurel 
wreath,  pahidamentum,  general's  cloak  and  sword  of  the 
imperator.  The  senate  conferred  on  him  the  title  Augustus, 
and  he  was  popularly  termed  princeps.  To  complete  the 
measure  of  his  power  he  was  also  made  a  tribune  of  the  plehs 
l)y  decree  of  the  senate  and  vote  of  the  assembly.  This  gave 
him  the  right  of  absolute  veto  on  the  acts  of  every  administra- 
tive officer,  and  to  convoke  the  assembly  and  senate  and  pro- 
pose to  them  new  laws.  The  fundamental  change  which  had 
come  over  the  views  of  the  Roman  people  with  reference  to  all 
governmental  matters  was,  that  in  place  of  looking  either  to 


332  EVOLUTION    OF   GOVERNMENTS    AND    LAWS 

the  aristocratic  senate  or  the  popular  assembly  as  the  source 
of  power,  all  eyes  were  turned  to  the  proconsul.  The  senate 
and  assembly  became  mere  instruments  for  the  ratification  of 
his  will.  Under  Sulla,  Cinna,  Marius  and  Caesar  it  had  been 
shown,  that  whomever  the  legions  obeyed  was  master  also  of 
the  civil  power  and  could  command  the  votes  of  the  popular 
assembly  as  well  as  of  the  senate. 

Augustus  reorganized  the  army,  enlisting  soldiers  for  long 
periods  of  service,  twelve  to  sixteen  years,  with  regular  pay. 
Of  these  he  kept  the  praetorian  guard,  his  household  troops 
and  picked  veterans,  numbering  in  all  12,000  to  15,000,  at 
Rome.  The  whole  army  consisted  of  twenty-five  legions,  each 
made  up  of  6,100  foot  and  726  horse,  recruited  both  from 
citizens  and  subjects  of  the  provinces.  Aside  from  these  aux- 
iliaries from  allied  nations  and  dependencies  were  employed, 
numbering  about  as  many  more. 

Under  Augustus  the  ancient  system  of  municipal  govern- 
ment was  preserved  in  form  at  Rome,  but  throughout  all  the 
provinces  his  absolute  imperium  was  under  no  check  or  limi- 
tation. The  actual  administration  of  this  absolute  power  was 
carried  on  in  accordance  with  a  regular  system,  and,  theoretic- 
ally at  least,  justice  was  administered  in  accordance  with  laws. 
The  municipal  system  modelled  after  that  of  Rome,  had  in 
republican  times  prevailed  in  all  the  Roman  colonies,  and 
under  the  empire  it  was  extended  to  the  provincial  cities  gen- 
erally, each  city  having  officers  corresponding  to  the  consuls 
and  senate,  who  regulated  local  affairs  and  decided  small  cases. 
Each  senate  sent  two  of  its  members  to  Rome  to  represent 
its  interests  there. 

For  the  purpose  of  levying  the  taxes  Augustus  caused  a 
great  map  of  the  empire  to  be  made.  The  lands  were  classi- 
fied and  rates  of  taxation  fixed  according  to  the  quality  of  the 
soil  and  nature  of  the  products.  From  some  provinces  a 
share  of  the  product  was  taken  in  kind,  while  from  others 
payment  in  money  was  required.  The  Romans  were  skilled  in 
the  art  of  levying  taxes,  and  not  only  land  and  capitation 
taxes,  but  various  forms  of  excise  taxes  and  import  duties 
were  levied,  and  the  products  of  the  mines  as  well  as  of  the 


ROME  333 

fields  were  made  to  swell  the  revenue.  Under  Augustus  the 
senate  was  allowed  to  retain  control  over  the  aerarium,  or 
treasury  of  the  city,  but  the  emperor's  treasury,  called  the 
fiscus,  received  the  taxes  from  the  provinces  and  was  subject 
to  his  sole  authority.  In  a  short  time  the  aerarium  fell  under 
the  control  of  the  emperors.  The  army  and  the  treasury  up- 
held and  perpetuated  his  power.  To  rule  so  many  people  and 
so  vast  a  territory  and  make  his  will  effectual,  general  rules 
of  conduct  must  be  announced  and  enforced  through  the  prae- 
tors and  other  officers.  The  vastness  of  the  tyrant's  power 
compelled  its  exercise  in  accordance  with  fixed  principles 
rather  than  caprice,  and  this  necessity  promoted  the  develop- 
ment of  that  great  system  of  settled  principles,  based  on  the 
consensus  of  opinion  of  successive  generations,  which  fur- 
nishes the  foundation  of  the  modern  jurisprudence  of  most 
European  and  American  states. 

During  the  republic,  except  when  a  dictator  held  absolute 
power  in  an  emergency  and  for  a  brief  period,  the  functions 
and  powers  of  all  public  officials  were  limited  by  law,  and 
different  offices  were  designed  to  afford  a  check  on  each  other. 
The  fundamental  change  effected  by  the  Caesars  superimposed 
a  military  head,  who  was  not  accountable  to  the  people  or  the 
senate.  Augustus  did  not  attempt  to  break  up  the  ancient 
civil  system,  but  rather  to  reconstruct  and  strengthen  it.  In- 
stead of  abolishing  minor  offices  he  increased  the  number. 
The  senate  was  allowed  to  continue  to  deliberate  and  exercise 
its  former  functions  in  all  matters  which  did  not  interfere 
with  his  supremacy  or  policy.  The  evils  of  this  system  had 
been  manifested  under  the  temporary  grants  of  dictatorial 
powers  during  the  civil  wars,  and  became  more  apparent  under 
succeeding  rulers.  Unrestrained  power  in  the  hands  of  bad 
men  is  always  abused.  Not  only  does  the  tyrant  gratify  his 
own  personal  malice  and  ruin  or  destroy  his  particular  ene- 
mies, but  those  whom  he  uses  as  his  instruments  for  such 
purposes  are  also,  as  a  rule,  allowed  to  treat  their  enemies  in 
a  similar  manner.  By  far  the  greater  number  of  victims 
under  the  worst  of  the  emperors  owed  their  misfortunes  to 
the  malice  of  favorites  and  subordinates,  who  used  the  author- 
ity of  the  emperor  to  further  individual  ends. 


334  EVOLUTION    OF   GOVERiNMEXTS    AND    LAWS 

The  idea  of  government  by  law  was  never  wholly  aban- 
doned under  even  the  worst  emperors.  While  he  was  subject 
to  no  supervision  or  control,  he  still  in  theory  was  subject  to 
the  laws.  This  adherence  to  laws  rendered  order,  tranquillity 
and  prosperity  possible  under  the  best  of  the  emperors,  and 
greatly  mitigated  the  evils  under  the  worst  of  them.  The 
habit  of  recurrence  to  a  recognized  standard  of  right  or  of 
conduct  tended  to  steadily  diminish  the  number  of  personal 
feuds,  and  to  encourage  commerce  and  agriculture.  The 
element  of  arbitrary  power  was  looked  upon  as  a  great  bless- 
ing when  wielded  by  virtuous  rulers,  but  the  poison  of  the 
system  became  manifest  under  every  weak  or  vicious  one. 
Against  a  tyrant  there  was  no  protection,  and  the  Roman 
people  no  longer  strove  to  improve  their  governmental  sys- 
tem, or  to  study  great  social  questions. 

In  the  administration  of  the  law  the  judges  were  expected 
to  decide  causes  in  accordance  with  settled  rules.  Wherever 
a  legislative  enactment  covered  the  case  they  were  of  course 
bound  by  it,  but,  in  the  absence  of  such  a  positive  law,  a  sys- 
tem of  rules  was  evolved  by  those  who  made  a  special  study 
of  the  law,  and  who  were  looked  to  as  authority  on  doubtful 
points.  The  judges  who  actually  administered  the  law  were 
not  regarded  as  authoritative  expositors  of  it.  In  cases  of 
doubt  they  applied  to  the  learned  juris  consults,  licensed  by  the 
emperor  to  give  written  expositions  of  the  law,  for  an  opin- 
ion. This  was  given  in  writing  and  was  generally  regarded 
as  binding,  except  that  where  two  juri's  consults  gave  opposing 
opinions  the  judge  was  free  to  decide  according  to  his  own 
views.  The  emperor  exercised  judicial  functions  in  cases 
brought  before  him  either  originally  or  by  appeal  or  removal 
from  an  inferior  court.  Imperial  decrees  and  rescripts  in  cases 
decided  by  him  came  to  have  the  effect  of  laws.  The  emperor 
in  theory  merely  declared  the  preexisting  law,  but  when  the 
question  was  new  the  declaration  had  the  effect  of  the  enact- 
ment of  a  law.  These  were  formulated  under  the  advice  and 
with  the  assistance  of  the  most  learned  lawyers,  who  proceeded 
step  by  step,  to  build  up  a  great  system  of  jurisprudence. 
Though  the  governmental  system  became  rigid,  unprogressive 


ROME  335 

and  therefore  moribund,  with  the  final  estabHshment  of  the 
empire  the  development  of  the  system  of  laws  went  on  in  the 
most  rational  manner.  To  the  Romans  the  credit  is  due  of 
systematically  developing  rules  of  conduct  and  governing 
property  rights  from  an  intelligent  consideration  of  the  needs 
of  society.  They  did  not  attempt  at  one  stroke  to  cover  the 
whole  field  by  a  code  of  laws  which  should  not  admit  of 
change  or  modification,  but  proceeded  to  consider  the  ques- 
tions as  they  arose  from  time  to  time,  and  formulated  their 
principles  from  what  accorded  with  their  conceptions  of  right. 
Under  the  republic  it  had  been  deemed  unjust  or  impracticable 
to  measure  the  rights  of  strangers  trading  with  citizens  or 
with  each  other,  by  the  Roman  jiis  chile,  and  so  what  was 
styled  jus  gentium  or  private  international  law  was  evolved 
by  the  praetors.  About  242  B.C.  a  second  praetor  was  ap- 
pointed, called  praetor  peregrimis,  whose  principal  duty  was 
to  hear  causes  to  which  foreigners  were  parties,  and  in  the 
exercise  of  his  jurisdiction  he  applied  the  jus  gentium  in  those 
cases  where  Roman  civil  law  was  not  within  the  contemplation 
of  the  parties  and  its  application  would  be  productive  of  mani- 
fest hardship.  The  Roman  system  under  the  republic  ex- 
hibited a  marked  tendency  to  adapt  itself  to  the  public  needs 
and  to  change  with  changing  conditions,  and  herein  lies  the 
secret  of  its  remarkable  development.  Under  the  republic 
the  praetors  were  accustomed,  on  taking  office,  to  publish  on 
their  albums  (white  boards  in  the  forum),  edicts  making 
known  the  relief  they  would  afford  in  certain  classes  of  cases. 
These  edicts  might  be  continued  by  the  successor  or  not,  but 
many  of  them  were  repeatedly  proclaimed  and  came  to  have 
practically  the  force  of  settled  law.  With  the  development  of 
commerce  the  customs  of  merchants,  based  on  the  necessities 
of  the  conditions  under  which  their  business  was  transacted, 
were  recognized  by  the  praetors,  and  these  customs  in  course 
of  time  ripened  into  laws.  It  was  this  facility  for  dealing 
with  new  conditions  and  adapting  means  to  ends  that  rendered 
continued  Roman  supremacy  possible.  The  rulers  at  Rome 
had  to  deal  with  people  varying  in  civilization  and  culture 
from  the  rude  tribes  on  all  the  frontiers  of  the  three  continents 


336  EVOLUTION    OF   GOVERNMENTS    AND   LAWS 

to  the  highly  poHshed  Greeks.  For  the  first  time  in  the 
world's  history  there  were  united  under  a  single  authority  the 
dwellers  in  the  earliest  seats  of  civilization  in  Egypt  and 
western  Asia,  the  Phoenician  colonies  of  Africa,  Sicily  and 
Spain,  Greece  and  all  the  Greek  islands  and  colonies,  the  rude 
tribes  of  Spain,  Gaul,  Germany,  Britain  and  Thrace,  as  well 
as  the  varied  population  of  Italy.  Rome  from  its  earliest 
conquests  had  been  accustomed  to  accord  local  self-govern- 
ment to  subjugated  communities,  and  throughout  the  develop- 
ment of  all  its  vast  empire  and  after  the  fall  of  the  republic 
it  continued  to  leave  the  regulation  of  purely  local  affairs  to 
the  people  interested,  but  the  central  authority  had  to  deal  with 
the  relations  of  all  these  varied  peoples  with  Rome  and  the 
Romans,  and  with  such  other  portions  of  the  empire  as  they 
were  permitted  to  have  dealings  with.  The  jus  civile  was  the 
law  adapted  to  the  conditions,  customs  and  prejudices  of 
Romans,  but  not  to  those  of  strange  people. 

In  the  development  of  the  jus  gentium  the  Romans  sought 
rules  which  could  be  safely  applied  under  all  conditions  and 
between  all  people.  It  would  be  inaccurate  to  say  that  they 
strove  to  do  ideal  justice  in  each  case,  or  that  they  searched 
for  rules  founded  solely  on  moral  principles,  but  a  search 
after  general  rules  which  can  safely  be  applied  under  all  cir- 
cumstances necessarily  leads  in  the  direction  of  truth,  justice 
and  morality.  The  jus  gentium  of  the  Roman  jurists,  though 
developed  in  a  manner  somewhat  similar  to  the  common  law 
of  England,  differed  from  it  in  this,  that  the  jus  gentium  was 
based  on  the  needs  of  the  newly  acquired  foreign  subjects, 
while  the  common  law  is  based  on  domestic  customs  and 
needs.  Both  however  have  for  their  foundation  the  presumed 
existence  of  principles  of  recognized  force,  though  not  pro- 
mulgated by  legislative  authority.  While  the  intellectual  ac- 
tivity of  the  Greeks  exhibited  more  brilliant  results  along 
most  lines  than  that  of  the  Romans,  in  the  science  of  law 
the  Romans  are  clearly  entitled  to  the  first  rank.  While  the 
system  of  government  established  by  Caesar  early  manifested 
its  imperfections  and  its  utter  lack  of  any  mainspring  urging 
it  in  the  direction  of  improvement,   the  juris  consults,   en- 


ROME  2>Z7 

couraged  and  efficiently  backed  in  their  efforts  by  the  best  of 
the  emperors,  by  degrees  evolved  a  system  of  laws  commend- 
ing itself  to  such  sense  of  justice  as  has  generally  obtained 
among  the  great  mass  of  mankind.  Roman  jurists  early 
found  that  a  complex  civilization  presents  complex  problems, 
and  that  the  law  must  deal  intelligently  with  these  and  with 
all  of  them,  however  numerous.  They  proceeded  laboriously 
to  formulate  rules  of  general  application,  by  which  every  con- 
troversy might  be  determined.  In  their  search  after  these 
principles  they  were  inevitably  led  to  a  consideration  of  jiis 
naturale,  which  embodied  the  idea  of  natural  rights  existing 
without  legislative  sanction.  Augustus  adhered  to  the  an- 
cient system  of  legislation  in  the  principal  reforms  he  pro- 
posed, and  caused  his  law  to  be  adopted  by  vote  of  the  comitia 
of  the  tribes.  He  made  a  most  commendable,  though  not 
entirely  successful,  effort  to  reform  public  morals  by  encour- 
aging marriage  and  the  rearing  of  children.  One  of  the  pro- 
visions of  his  law  excluded  unmarried  persons  within  certain 
ages  from  taking  property  by  will,  and  limited  childless  per- 
sons to  one-half  the  amount  given.  Another  class  of  legis- 
lation, deemed  of  great  importance,  regulated  the  manumission 
of  slaves  and  determined  the  status  of  freedmen  according  to 
circumstances  prescribed  in  the  law,  as  citizens,  as  capable  of 
becoming  such  or,  owing  to  bad  character,  forbidden  to  reside 
within  one  hundred  miles  of  Rome  or  ever  to  become  a 
citizen.  A  third  class  of  enactments  regulated  procedure  in 
private  causes. 

From  the  time  of  Tiberius  the  comitia  was  no  longer  con- 
sulted, and  under  succeeding  emperors  imperial  rescripts  and 
decrees  gradually  superseded  legislation  by  assembly  and  sen- 
ate. Rome  witnessed  the  growth  of  the  law  of  contracts  from 
primitive  conditions  in  the  early  days  of  barter  of  chattels 
and  tribal  and  patriarchal  tenure  of  lands  through  successive 
stages  to  that  freedom  of  contract  so  essential  to  commercial 
activity.  In  the  early  stages  the  formalities  required  in  the 
transfer  of  property  in  order  to  furnish  a  basis  for  the  action 
of  the  courts  were  incompatible  with  anything  like  commercial 
activity,  but  step  by  step  the  law  of  contracts  developed,  till 


338  EVOLUTIOX    OF    GOVERjNMEXTS    AND    LAWS 

the  intent  of  the  parties  was  given  effect  by  the  courts  with 
httle  needless  formaHty.  The  law  of  inheritance  was  through 
all  ages  a  leading  subject  of  jurisprudence,  and  here,  as  in 
the  law  of  contracts,  there  was  a  steady  tendency  to  greater 
freedom  in  the  disposition  of  property  according  to  the  will 
of  the  owner.  Contemporaneous  with  the  vast  increase  of 
the  army  new  rights  were  accorded  to  soldiers  in  the  dispo- 
sition of  their  estates  by  testament.  As  to  property  acquired 
by  military  services  the  soldier  son  was  allowed  full  power  of 
testementary  disposition,  freed  from  the  patria  potestas  of  the 
head  of  the  family.  With  this  change  came  also  a  recognition 
of  the  right  of  owners  generally  to  dispose  of  property  by 
will  and  the  growth  of  trusts  created  by  will.  The  great  heads 
of  legislation  and  judicial  cognizance  were  domestic  relations 
i.e.,  family  and  slaves,  inheritances,  contracts,  land  tenure. 

For  the  protection  of  invaded  rights  there  was  an  effort 
under  the  empire  to  improve  remedies  and  adapt  means  to 
ends  without  any  radical  change  of  the  system.  The  ordinary 
suit  was  instituted  by  application  to  the  praetor.  Under  the 
old  system  the  parties  themselves  formulated  the  issues  to  be 
tried  in  accordance  with  statutory  or  traditional  forms,  and 
the  issue  so  made  was  sent  to  the  judex  for  trial.  This  was 
changed  so  that  the  issue  was  framed  by  the  praetor.  The 
plaintiff  usually  stated  the  case  and  indicated  on  the  album 
the  remedy  he  thought  suitable,  and  the  defendant  entered 
his  plea  indicating  matter  of  defense  in  law,  and  reserving  his 
right  to  traverse  the  facts.  Thereupon  the  praetor  considered 
the  legal  exceptions  to  the  case  stated  by  the  plaintiff,  and 
made  up  a  written  and  signed  appointment  to  a  judge,  in- 
structing him  what  to  try  and  authorizing  him  to  condemn  or 
acquit  the  defendant.  The  form  in  which  the  issues  were 
framed  in  an  ordinary  action  to  recover  a  debt  was  exceed- 
ingly simple  Hke  this  ''Caius  be  judge.  Should  it  appear  that 
M.  A.  ought  to  pay  ten  thousand  sesterces  to  J.  C.  in  that 
sun  condemn  M.  A.  to  J.  C. ;  should  it  not  so  appear  acquit 
him" !  Modifications  of  this  form  allowed  the  recovery  of 
the  value  of  chattels  or  an  equitable  accounting  of  profits  or 
the  like. 


ROME  339 

One  form  for  the  trial  of  a  suit  for  land  was,  that  the 
plaintiff  required  the  defendant  to  give  him  a  stipulation  to 
pay  a  nominal  sum  in  case  the  land  should  be  found  to  belong- 
to  the  plaintiff  and  to  give  surety  for  its  transfer  in  that  event. 
The  question  sent  to  the  judge  to  be  tried  was  whether  the 
sum  should  be  paid.  If  the  plaintiff  recovered  and  the  de- 
fendant did  not  deliver  the  property,  recourse  was  had  on  the 
sureties.  Besides  the  set  forms  adapted  to  certain  classes  of 
actions  the  praetors  formulated  a  great  number,  suited  to 
special  cases,  generally  styled  actiones  in  factum.  They  also 
by  interdict  gave  relief  similar  to  that  granted  by  injunction 
under  our  practice.  The  development  of  remedies  was  very 
similar  to  that  in  England.  In  the  early  times  a  few  set 
forms  of  action  afforded  all  the  relief  allowed;  later  these  by 
fiction  were  allowed  to  cover  cases  not  within  the  letter,  and 
then  new  forms  of  procedure  were  devised  to  meet  new  con- 
ditions. Causes  presenting  novel  questions  and  of  especial 
difficulty  were  retained  for  trial  and  disposition  by  the  praetor 
or  taken  cognizance  of  by  a  consul.  The  judices  to  whom  the 
praetors  referred  causes  were  not  officials,  but  citizens  se- 
lected to  hear  and  determine  the  particular  cases.  In  the  time 
of  Diocletian  the  system  of  referring  causes  to  judices  fell 
into  disfavor  and  was  soon  discontinued  altogether;  gover- 
nors, prefects  and  praeters  being  required  to  hear  the  cause 
to  the  end,  and  the  old  procedure  by  which  the  plaintiff  him- 
self brought  the  defendant  into  court  was  abandoned. 

The  government  of  Rome,  though  in  its  essence  a  despot- 
ism, did  not  discard  all  the  forms  of  a  republic  till  the  time  of 
Diocletian.  Though  for  centuries  the  obsequious  senate  had 
ratified  the  edicts  of  the  emperors  and  given  a  formal  sanc- 
tion to  his  will,  Diocletion  ignored  it  altogether.  He  associ- 
ated with  himself  the  harsh  and  vigorous  soldier  Maximian, 
as  joint  ruler  with  the  style  Augustus,  and  later  two  other 
associates,  as  inferiors  under  the  style  Caesares ;  all  subor- 
dinate to  Diocletian  as  senior  Augustus.  He  threw  off  all 
pretense  of  constitutional  government  and  openly  assumed 
autocratic  powers,  and  to  the  title  ''imperator''  added  that  of 
"dorninus;'  and  required  those  approaching  him  to  make  those 


340  EVOLUTION    OF    GOVERNMiENTS    AND    LAWS 

servile  prostrations  which  were  customary  in  the  courts  of  the 
east.  He  infused  vigor  into  the  administration  of  the  local 
government,  but  it  was  everywhere  despotic  vigor,  emanating 
from  the  central  authority.  The  government  ceased  to  be  ad- 
ministered from  Rome  as  the  seat  of  power ;  Nicomedia  in  the 
east  and  Milan  in  the  west  became  the  favorite  residences 
respectively  of  Diocletian  and  Maximian.  In  his  reign  the 
government  reached  its  climax  of  absolute  power  and  rigidity, 
though  the  scheme  of  a  quadruple  division  of  power  did  not 
endure.  While  administrative  changes  occurred  from  time 
to  time  thereafter,  the  government  remained  despotic,  unpro- 
gressive  and  moribund.  The  Roman  republic  was  dead.  The 
Roman  empire  ceased  to  be  ruled  either  from  Rome  as  a  capi- 
tal  or  by  Romans,  for  Diocletian  was  the  son  of  slave  par- 
ents, and  his  mother  was  a  Dalmatian.  At  the  head  of  the 
civil  administration  were  four  prefects,  under  whom  were  the 
vicarii  over  the  twelve  dioceses,  and  governors  of  the  ii6 
provinces  with  their  hosts  of  minor  officials,  all  under  strict 
subordination  and  accountability  to  the  central  authority. 

The  reign  of  Constantine,  beginning  in  323,  witnessed  the 
establishment  of  the  capitol  of  the  eastern  empire  at  Constan- 
tinople and  the  adoption  of  the  Christian  religion  as  the  re- 
ligion of  the  empire,  but  the  theory  of  government  remained 
unchanged.  For  the  beneficial  eflfects  of  Christianity  we  have 
to  look  elsewhere  than  to  the  governmental  machinery. 
Though  writings  embodying  the  principles  of  the  law  multi- 
plied, not  only  in  the  form  of  enactments  by  the  comitia  and 
senate  and  later  in  rescripts  and  edicts  of  the  praetors  and 
emperors,  but  also  in  extended  commentaries  by  juris  con- 
sults, it  was  not  till  the  reign  of  Diocletian  that  the  first 
efforts  at  codification  were  made.  The  Gregorian  Code  was 
a  collection  of  imperial  rescripts  made  near  the  end  of  the 
third  century,  to  which  Hermogenianus  added  a  supplement 
about  365.  These  codes  received  the  sanction  of  Theodosius 
and  Valentinian.  Under  Theodosius  a  compilation  was  made 
and  published  A.D.  438  in  sixteen  books,  covering  the  whole 
field  of  the  law.  Other  less  noted  compilations  among  which 
may  be  mentioned  one  by  order  of  Theodoric  king  of  the 


ROME  341 

Ostrogoths,  called  the  Edictum  Theodoric,  and  another  by 
order  of  Alaric  II  king  of  the  Visigoths,  styled  Lex  Romana 
Visigothorum. 

The  work  however  which  stands  as  the  product  of  all  legal 
development  under  the  empire  is  that  accomplished  by  Trbon- 
ian  and  his  associates.  As  we  have  seen,  during  the  years  of 
development  the  law  gained  written  expression  from  time  to 
time  in  edicts,  rescripts  and  opinions  of  the  juris  consults. 
These  in  the  time  of  Justinian  had  become  so  numerous  as 
to  fill  nearly  two  thousand  volumes.  Justinian  was  not  merely 
a  compiler,  but  himself  made  various  reforms  in  the  body  of 
the  law.  The  first  compilation  made  under  his  order  was 
called  the  code,  including  the  statute  law  and  rescripts  of  the 
Gregorian  and  Hermogenian  codes.  This  was  followed  by 
his  fifty  decisions,  the  Institutes,  the  Digest  of  writings  of  the 
jurists,  a  revised  code  and  a  series  of  Novels.  Taken  together 
they  purport  to  cover  the  whole  field  of  the  law,  civil,  criminal, 
public,  private,  secular  and  ecclesiastical.  The  most  that  can 
be  attempted  here  in  reviewing  this  great  work  is  a  very  gen- 
eral outline  of  its  scope  and  leading  provisions.  This  is  ren- 
dered most  difficult  by  the  want  of  systematic  and  orderly 
arrangement,  which  alone  saves  modern  publications  from 
chaotic  worthlessness. 

Of  the  compilations  of  Justinian  the  Institutes  were  de- 
signed as  a  textbook  for  the  schools,  but  the  Digest  and 
second  or  revised  code  were  declared  of  equal  authority.  A 
condensed  summary  of  the  Institutes  will  be  found  in  the  Ap- 
pendix. It  is  noticeable  that  the  compiler  and  final  authorita- 
tive promulgator  of  this  vast  product  of  Roman  jurists,  should 
have  been  a  barbarian,  born  in  Illyricum,  ruling  in  Constanti- 
nople after  the  final  extinction  of  the  western  empire  and  the 
overthrow  of  Rome  as  a  center  of  political  power.  The  vast 
accumulation  of  legal  lore  filling  so  many  volumes  was  re- 
duced to  reasonable  limits,  freed  from  many  uncertainties, 
improved  in  many  particulars  and  promulgated '  as  of  con- 
trolling authority  in  all  courts  in  the  empire.  It  is  even  more 
remarkable  that  the  perfection  of  this  great  body  of  law  should 
have  been  effected  after  the  disintegration  of  the  empire  was 


342  EVOLUTION    OF   GOVERNMENTS    A'ND   LAWS 

well  advanced,  and  at  a  time  when  letters  were  neglected  and 
the  authority  of  courts  was  being  broken  by  the  inroads  of 
the  barbarians  and  the  disruption  of  the  Roman  system 
throughout  the  empire.  Having  reached  its  culmination  the 
Roman  law  ceased  to  develop  or  have  uniform  operation,  but 
gave  way  to  the  customs  and  laws  of  the  barbarians  wherever 
they  supplanted  Roman  civilization.  It  was  still  resorted  to 
in  those  parts  of  the  empire  which  escaped  the  inroads  of  the 
barbarians,  and  as  learning  revived  regained  its  force  with 
modifications  resulting  from  changed  customs  and  conditions. 
Justinian,  like  many  another  lawgiver,  aimed  at  completeness 
and  finality  in  his  work,  and  forbade  the  use  of  any  other 
books  or  authorities,  or  any  comments  or  interpretations  of 
his  works.  He  like  others  was  oblivious  to  the  truth  that  an 
absolutely  fixed  and  rigid  system  of  government  or  of  laws  is 
impossible.  Anything  like  a  clear  comprehension  of  a  system 
of  laws  necessitates  an  understanding  of  the  material  and 
social  conditions  to  which  it  is  applied.  If  we  had  no  extrin- 
sic evidence,  the  laws  themselves  exhibit  the  importance  of  the 
Roman  theory  of  the  family  and  of  the  institution  of  slavery. 
From  the  earliest  days  of  Rome  slavery  had  been  a  recognized 
institution,  and  it  held  its  place  until  the  empire  broke  into 
fragments.  In  the  early  days  the  number  of  slaves  was  rela- 
tively inconsiderable,  but  as  new  territories  were  added  and 
the  rich  citizens  enlarged  their  estates,  they  increased  the 
numbers  of  their  slaves,  till  in  the  time  of  the  Caesars  the 
nobles  owned  them  by  hundreds  and  even  by  thousands.  With 
this  great  increase  in  slave  holding  came  a  corresponding  de- 
crease of  the  prosperity  of  the  poorer  class  of  citizens,  who 
throughout  the  agricultural  districts  gradually  ceased  to  be 
independent  landowners  and  became  tenants  of  the  wealthy 
proprietors.  In  course  of  time  this  tenancy  became  on  harder 
and  harder  terms,  till  the  coloni,  as  they  were  termed,  became 
virtually  serfs  attached  to  the  soil,  bound  to  cultivate  the 
land  on  terms  affording  but  a  bare  subsistence.  Agricultural 
slaves  were  to  a  great  extent  assigned  to  the  cultivation  of 
particular  tracts  of  land,  which  they  were  permitted  to  occupy 
with  their  families,  and  thus  the  actual  conditions  under  which 


ROME  343 

the  coloni  and  the  slaves  Hved  were  often  very  similar.  In 
the  days  of  greater  activity  slaves  were  employed  by  their 
masters,  not  only  on  all  kinds  of  works,  but  in  all  trades  and 
callings,  and  opportunities  for  the  acquisition  of  property  and 
of  freedom  were  afforded  to  some.  The  proud  Roman  patri- 
cian despised  all  useful  labor  and  entrusted  every  employment 
to  his  slaves.  Under  the  republic  their  numbers  were  sufficient 
to  make  servile  revolts  serious,  and  the  insurrection  under  the 
leadership  of  Spartacus  was  only  subdued  after  a  desperate 
and  bloody  war.  The  emperors  aimed  at  the  establishment 
of  social  order  and  the  protection  of  property  rights.  The 
moral  claims  of  the  slave  to  liberty  and  the  pursuit  of  happi- 
ness were  wholly  obscured  by  the  master's  right  to  property. 
The  great  province  of  law  and  government  was  first  to  firmly 
establish  the  power  of  the  emperor  and  those  acting  under 
him,  and  next  to  maintain  the  rights  of  property,  that  is  the 
dominion  of  the  master  over  his  slaves  and  his  lands.  The 
ancient  Roman  idea  of  a  single  head  of  the  family  with  full 
sway  over  all  his  children  under  the  power  and  their  families, 
accorded  well  with  the  spirit  of  a  slave  holding  community. 
We  have  seen  how  largely  slavery  entered  into  the  legal  sys- 
tem of  Justinian,  and  how  fully  it  was  recognized,  though  de- 
clared to  be  contrary  to  natural  justice.  With  the  reign  of 
Justinian  the  empire  in  the  west  witnessed  its  last  vigorous 
assertion  of  supremacy  in  Italy,  though  it  nominally  main- 
tained a  semblance  of  authority  in  central  Italy  till  755.  The 
perfected  despotism  had  become  crystalized  under  Diocle- 
tian, leaving  no  chance  for  development  or  betterment  from 
the  wisdom  of  the  multitude.  The  lawyers  and  lawmakers 
continued  to  change,  amend  and  improve  the  laws  till  the  time 
of  Justinian,  when  they  were  compiled  by  his  direction,  and 
though  greatly  improved  and  rendered  far  easier  of  access 
than  when  scattered  through  so  many  volumes,  they  rapidly 
passed  out  of  view  and  became  unsuited  to  the  changed  con- 
ditions. The  social  decay  resulting  from  an  organization  of 
society  under  which  the  great  multitude  were  slaves,  without 
education,  opportunity  for  observation  except  of  their  im- 
mediate surroundings,  or  hope  of  better  conditions,  with  an 


k 


344  EVOLUTION    OF   GOVERNMENTS   AND   LAWS 

indolent  debauched  nobility  supported  as  drones,  invited  the 
frequent  inroads  of  the  more  free  and  vigorous  races  of  the 
north.  The  various  Germanic  tribes,  the  Goths,  Vandals, 
Lombards,  Huns  and  Franks  in  wave  after  v^ave  swept  down 
on  Gaul,  Spain,  Africa  and  Italy,  until  the  Roman  system 
gave  way,  and  a  new  composite  of  northern  manners  and  Ro- 
man customs  ushered  in  the  so-called  dark  ages,  when  learn- 
ing was  for  the  priest  alone,  and  war  was  the  business  of 
every  freeman.  With  the  growth  of  the  feudal  system,  with 
its  lord  paramount  at  the  top  and  its  serf  bound  to  the  soil 
at  the  bottom,  the  slavery  of  the  Romans  disappeared.  It 
may  be  interesting  for  scholars  to  trace  the  stages  by  which 
the  slaves  and  coloni  of  the  Romans  and  the  humbler  follow- 
ers of  the  Prankish  leaders  were  transformed  into  the  lowest 
round  of  the  feudal  ladder,  but  the  transformation  was  not 
the  result  of  conscious  law-making.  The  decay  always  in- 
cident to  despotism,  idleness  and  corruption  in  the  palace,  a 
multitude  of  officials,  ever  bent  on  extorting  more  and  more 
from  every  producer  of  wealth,  weakness  and  inefficiency  in 
those  who  lived  in  idleness  on  the  fruits  of  the  labors  of  oth- 
ers, at  last  culminated  in  conditions  but  little  removed  from 
anarchy.  The  various  leaders  attracted  followers  according 
to  their  abilities,  to  whom  they  parcelled  out  the  lands  on  a 
strictly  military  tenure,  the  lord  pledged  to  protect  the  vassal 
in  his  possession  and  the  vassal  bound  to  fight  in  all  the  lord's 
wars.  The  slave,  the  colonus  and  the  indigent  became  the 
serf,  ceorl  and  villein  of  the  feudal  chief.  The  eastern  em- 
pire lingered  on  as  an  uninteresting  despotism  till  the  fall  of 
Constantinople  in  1453.  At  Rome  the  spiritual  power  of  the 
popes  gained  an  ascendency  over  Europe,  which  made  the 
eternal  city  once  more  the  seat  of  power. 

From  the  fragments  of  the  western  empire,  through  num- 
berless vicissitudes  have  developed  the  modern  European 
states.  Until  within  modern  times  these,  with  exceptions 
hereafter  noticed,  were  mostly  governed  by  rulers  claiming 
power  as  absolute  as  that  exercised  by  the  later  Roman  em- 
perors. The  rules  of  feudal  tenure  took  the  place  of  the  land 
laws  of  the  Romans  and  gave  to  title  to  lands  a  prominence  in 


ROME  345 

the  system  of  laws  which  it  never  had  under  the  Romans. 
With  the  latter  the  slave  was  a  more  prominent  object  than 
the  land  he  tilled.  Under  the  feudal  system  land  tenure  was 
the  basis  of  the  relations  of  all  orders  of  society,  and  the  land 
and  its  produce,  after  the  decay  of  the  industrial  arts,  became 
almost  the  sole  wealth  of  the  people.  The  rank  of  the  lord 
paramount  depended  on  the  extent  of  his  holdings  and  the 
number  of  retainers  who  did  him  homage. 

Though  so  large  a  part  of  the  Roman  law  became  obsolete 
by  this  change,  it  still  contained  the  only  compilation  of  rules 
for  the  determination  of  questions  arising  from  the  multi- 
farious dealings  of  men,  from  their  contracts,  their  acts  and 
neglects,  and  with  the  revival  of  learning  and  of  commerce, 
the  great  work  of  Justinian,  having  slept  for  hundreds  of 
years,  became  the  fountain  of  legal  lore  to  which  the  students 
of  the  law  throughout  all  Europe  turned  for  light  and  author- 
ity on  doubtful  points.  The  reasoning  of  the  ancient  writers, 
preserved  in  the  Digest,  still  throws  as  clear  light  on  many 
questions  as  can  be  found  anywhere,  and  carries  with  it  the 
authority  of  jus  naturale. 

Five  centuries  of  struggle  between  classes  for  ascendency, 
and  of  a  public  sentiment  that  demanded  from  the  citizen  a 
sacrifice  of  private  interest  and  of  life  when  needed  for  the 
republic,  witnessed  the  rise  of  the  Roman  state,  the  extension 
of  a  system  of  self-government  and  of  laws  over  western 
Europe  and  all  the  countries  bordering  on  the  Mediterranean 
Sea.  It  witnessed  a  high  development  of  agriculture,  the 
growth  of  manufacturing,  mining,  arts  and  conimerce,  where- 
ever  Rome's  power  was  recognized,  and  marked  advancement 
in  learning.  Though  Rome  waged  almost  incessant  war  in 
some  quarters,  the  area  of  peace  extended  with  her  conquests, 
and  an  ever  increasing  proportion  of  the  people  were  enabled 
to  pursue  peaceful  avocations  in  security.  Under  these  condi- 
tions population  multiplied  and  wealth  and  comfort,  though 
most  unequally  distributed,  were  general  throughout  the  state. 
During  these  five  centuries  public  office  was  sought  and  public 
duties  were  performed  for  honor,  not  for  profit.  The  rank 
and   distinction   resulting    from   high   office    of    state   were 


346  EVOLUTION    OF   GOVERiNMENTS    AND    LAWS 

deemed  so  great  a  reward  that  the  brief  terms  of  yearly 
power  were  eagerly  sought  by  the  most  capable  citizens. 

The  vast  military  organization  and  the  struggle  for  its 
leadership  developed  the  empire.  Five  centuries  of  rulership 
from  a  single  head  through  an  ever  increasing  multitude  of 
highly  paid  officials,  of  gradual  elimination  of  all  self-govern- 
ment and  of  substitution  therefor  of  rigid  laws,  enforced 
often  with  extreme  severity  and  cruelty,  witnessed  the  decay 
of  public  virtue,  the  decline  of  population,  wealth,  learning 
and  all  those  conditions  which  tend  to  make  Hfe  enjoyable. 
Owners  of  vast  estates  with  their  multitudes  of  slaves  af- 
forded no  material  from  which  to  build  an  efficient,  spirited 
army.  The  free  and  vigorous  Germanic  tribes  swept  over 
Gaul,  Spain,  Africa  and  finally  Italy  and  Rome  itself.  The 
magnificent  structure  of  a  firm  and  settled  government  with 
its  code  of  well  developed  laws  governing  so  vast  a  territory 
and  such  a  multitude  of  people,  capable  as  one  might  think 
of  conferring  immeasurable  good  on  innumerable  people,  in 
fact  resulted  in  desolation  and  anarchy.  Why?  Because  it 
was  immoral  and  unprogressive.  It  bred  vice  and  cruelty  in 
the  palace  and  all  who  held  authority  under  it,  and  stifled  the 
political  virtues  of  the  multitude.  It  divided  the  people  into 
masters  and  slaves.  Though  the  eastern  empire  lingered  on 
till  Mahomet  II  took  Constantinople,  and  killed  the  last  of 
his  line,  the  emperor  Constantine  Poleologus,  it  presents  no 
other  features  of  government  or  laws  worthy  of  especial  study. 
It  was  but  another  oriental  despotism,  with  its  record  of  ever 
recurring  cruelty,  treachery,  wars,  murders,  and  occasional 
exhibitions  of  virtue  in  the  palace,  soon  followed  by  the  same 
old  story  of  debauchery,  vice  and  imbecility;  overthrown  at 
last  by  a  new  dynasty  to  again  follow  the  same  dreary  round. 

Though  the  Western  Empire  passed  away  long  before  the 
Eastern,  the  influence  of  Rome  as  a  law-making  and  law-en- 
forcing power  was  perpetuated  through  the  Church,  and  still 
continues.  The  Canon  law  was  more  than  a  collection  of 
moral  precepts  advanced  as  binding  on  the  conscience.  It 
covered  a  field  claimed  by  the  Church  as  under  its  government, 
and  came  to  be  accepted  in  more  or  less  of  its  rules  by  the 


ROME  347 

secular  power  of  all  the  nations  professing  the  Christian  re- 
ligion. It  was  given  form  by  synods  and  councils  of  the  clergy 
and  the  decretals  of  the  Pope.  These  were  put  forward  as 
carrying  a  religious  sanction,  binding  on  all  mankind,  and 
were  enforced  by  the  tribunals  of  the  church  in  accordance 
with  its  practice.  From  the  Canon  law  are  taken  many  of  the 
rules  now  observed  not  only  on  the  continent  of  Europe,  but 
in  Great  Britain,  its  colonies  and  the  United  States,  in  mat- 
ters relating  to  the  domestic  relations.  The  Church  took 
charge  of  the  baptism  of  infants,  the  marriage  of  adults  and 
the  burial  of  the  dead.  In  the  performance  of  these  rites 
there  was  no  distinction  of  rank.  Prince  and  pauper  alike 
were  children  of  the  Church.  With  the  acceptance  of  the 
Christian  religion  the  heathen  prince  bowed  to  the  spiritual 
power  of  the  Pope,  and  received  baptism  at  the  hands  of  a 
priest.  It  was  impossible  to  be  a  Catholic  without  acknowl- 
edging some  part  of  the  Canon  Law,  and  thus  the  most  power- 
ful monarchs  found  it  impossible  to  wholly  ignore  the 
temporal  sway  of  the  Pope  within  their  dominions.  The 
principal  heads  of  the  jurisdiction  of  the  ecclesiastical  courts 
were : 

1.  Marriage  and  divorce. 

2.  Legitimacy  of  children. 

3.  Wills  and  the  administration  of  estates  of  deceased 
persons. 

4.  Causes  relating  to  church  property  and  revenues. 

5.  Those  affecting  the  persons  of  the  clergy. 

The  first  two  were  earliest  asserted,  most  generally  admit- 
ted and  continued  to  be  longest  exercised.  The  fourth  and 
fifth  were  most  difficult  to  establish  and  maintain.  Many  of 
the  principles  followed  by  the  ecclesiastical  tribunals  as  sub- 
stantive law  are  still  retained  in  countries  where  the  jurisdic- 
tion of  church  tribunals  is  confined  to  the  discipline  of  its 
members  in  purely  religious  matters. 


348  EVOLUTION    OF   GOVERlNM-ENTS    AND   LAWS 

Authorities 

Momsen:     History  of  Rome. 

Gibbon :    Decline  and  Fall  of  the  Roman  Empire. 

Merivale:     Romans  under  the  Empire. 

Livy. 

Tacitus. 

Caesar. 

Sallust. 

Plutarch's  Lives. 

Encylcopaedia  Britannica. 


CHAPTER  XV 


Mediaeval  Europe 


The  empire  of  the  Romans  in  Europe  was  limited  on  the 
north  and  east  by  the  Danube  and  the  Rhine  after  the  aban- 
donment of  Dacia  in  256,  and  included  Britain  and  the  low- 
lands of  Scotland  in  the  north  and  the  Chersonese  on  the 
Black  Sea.  Without  these  boundaries  lay  the  vast  terra  in- 
cognita of  Germany,  Sarmatia  and  the  northern  peninsula. 
Of  the  early  history  of  this  unknown  country  we  know  only 
what  is  told  by  Greek  and  Roman  historians  in  connection 
with  wars  and  movements  of  people,  where  Greeks  and  Ro- 
mans came  in  contact  with  Germans,  Getae,  Scyths  and  other 
people  of  the  north  and  east. 

After  their  conquest  Spain  and  Gaul  became  thoroughly 
Romanized,  and  the  country  south  of  the  Danube  with  its 
predominant  Greek  elements  submitted  to  Roman  rulership 
and  laws.  Though  the  empire  was  many  times  shaken  by 
wars  over  the  succession  to  the  imperial  throne,  and  though 
in  the  east  Persia  offered  battle  from  time  to  time,  the  period 
from  the  reign  of  x\ugustus  to  the  overthrow  of  the  western 
empire  in  the  fifth  century  was  one  of  comparative  peace  and 
security,  yet  not  of  progress.  Agriculture  and  the  useful  arts, 
instead  of  advancing,  fell  into  decay.  Learning  waned  and 
the  ability  to  read  and  write,  which  under  the  republic  had 
become  common,  was  rare.  The  great  works  of  Justinian 
in  the  next  century,  reducing  the  laws  to  form  and  system, 
never  became  generally  known  to  the  people  of  his  exhausted 
and  crumbling  empire. 

Imperial  rule  produced  neither  moral  nor  material  develop- 
ment. Roman  sentiment  never  condemned,  but  rather  de- 
lighted in  bloody  spectacles  and  exhibitions  of  cruelty  and 
barbarity.  Slavery  lay  at  the  foundation  of  property  rights. 
The  ig^norant  multitude  applauded  the  lavish  expenditures  and 

349 


350  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

barbaric  display  of  the  rich.  Neither  the  government  nor  the 
property  system  rested  on  any  moral  basis.  With  the  destruc- 
tion of  the  middle  order  the  integrity  of  the  domestic  system 
was  broken,  and  that  only  sure  repository  of  virtue  and  purity, 
the  family,  was  subjected  to  the  debasing  influence  of  frequent 
divorces  and  remarriages  at  the  dictation  of  interest  or 
caprice. 

With  the  republic  also  passed  away  that  devotion  to  the 
public  welfare,  which  had  been  the  conspicuous  virtue  of 
Romans  throughout  the  long  and  desperate  struggles  that 
gave  Rome  mastery  of  the  known  world.  This  was  the  Ro- 
man approximation  to  a  conception  of  the  universal  moral 
principle  of  mutual  help.  In  its  place  came  oriental  sordid- 
ness.  Deprived  of  all  participation  in  affairs  of  state,  unless 
as  the  mere  instruments  of  the  imperial  will,  the  ambition  of 
the  citizen  was  to  gain  wealth  and  through  wealth  enjoyment. 
The  sure  fruits  of  successful  effort  in  this  direction  are 
cruelty  and  sensuality,  which  in  turn  bring  disease  and  destruc- 
tion. Out  of  the  darkness  came  the  Germanic  tribes,  whose 
history  no  records  preserve.  With  manners  and  customs 
bearing  more  resemblance  to  those  of  the  Romans  of  the 
early  days  than  prevailed  in  the  empire,  they  attacked  the 
enervated  Romans.  In  the  early  years  of  imperial  rule  the 
vast  resources  of  the  empire  were  such  as  to  render  victory 
over  the  comparatively  insignificant  tribes  sure,  if  not  easy. 
In  the  reign  of  Marcus  Aurelius  an  irruption  of  the  Marco- 
manni  and  allied  tribes  swept  across  the  upper  Danube  over 
Pannonia,  Noricum  and  Rhaetia  to  the  Alps.  They  were 
driven  back  after  fourteen  years  of  war.  In  236  the  thereto- 
fore unknown  tribes  of  the  Alemanni  crossed  the  Rhine,  and 
the  Goths  appeared  on  the  Danube.  During  the  civil  wars 
from  the  reign  of  Philip  to  Claudius,  244  to  249,  the  bar- 
barians improved  their  opportunities,  and  the  Alemanni  and 
Franks  poured  into  Gaul  and  Spain  and  even  Africa.  In 
247  the  Goths  crossed  the  Danube  and  overran  Moesia,  Thrace 
and  Macedonia  and  in  251  defeated  and  killed  the  emperor 
Decius.  In  the  reign  of  Valerian  253-260  their  fleets  ap- 
peared on  the  Black  Sea  and  ravaged  the  maritime  towns  of 


MEDIAEVAL  EUROPE  35i 

Asia  Minor.  In  the  reign  of  Gallienus,  260  to  268,  a  fleet  of 
five  hundred  sails  appeared  on  the  coast  of  Greece  and  sacked 
Athens,  Corinth,  Argos  and  Sparta.  In  269  under  the  emp- 
eror Claudius  the  Romans  defeated  and  drove  them  back 
across  the  Danube.  Five  years  later  a  raid  of  Franks  and 
Alemanni  was  repulsed  on  the  Rhine.  As  a  result  of  these 
conflicts  the  Romans  were  forced  to  recede  and  abandon  Dacia 
and  all  possessions  beyond  the  Rhine  and  Danube  to  the  ad- 
vancing barbarians.  Under  the  vigorous  and  despotic  reign 
of  Diocletian  the  integrity  of  the  empire  was  preserved  and 
the  authority  of  the  government  vigorously  maintained,  but 
there  was  no  improvement  in  the  moral  tone  of  either  people 
or  government.  Selfishness  and  want  of  social  virtue  called 
for  a  better  corrective  than  a  more  vigorous  assertion  of  au- 
thority and  an  increased  burden  of  taxation.  The  removal  of 
the  capital  to  the  Bosphorus  was  soon  followed  by  the  division 
into  the  eastern  and  western  empires,  and  by  the  decay  of  im- 
perial authority  throughout  the  west. 

In  376  the  Huns  emerged  from  the  unknown  hives  of  Asia 
and  pressed  against  the  Goths,  who  sought  the  protection  of 
the  emperor.  They  were  allowed  to  cross  the  Danube  and 
settle  in  Moesia,  but  soon  rose  in  arms  against  their  protectors 
and  in  378  defeated  and  killed  Valens,  overran  Illyricum,  and 
advanced  to  the  gates  of  Constantinople.  Theodosius  made 
peace  with  them  and  took  many  into  the  army.  While  the 
boundaries  of  the  empire  were  nominally  maintained  through- 
out the  fourth  century,  there  was  a  growing  pressure  from 
the  northern  tribes.  As  a  result  of  their  contact  with  the 
Romans,  Goths,  Franks  and  other  nations  acquired  some 
knowledge  of  military  science,  and  learned  to  supplement  the 
hardy  valor  of  their  warriors  with  some  measure  of  discipline 
and  mutual  support.  On  the  other  hand,  civil  wars,  the  de- 
pendence on  mercenary  troops,  the  utter  disappearance  of 
everything  like  unselfish  devotion  to  the  public  welfare,  the 
grinding  burden  of  taxation  levied  to  pay  mercenaries,  many 
of  whom  were  barbarians,  and  to  support  the  vile  profligacy 
of  the  palace  and  the  ever  growing  multitude  of  officeholders, 
the  slavery  or  extreme  poverty  of  all  who  labored,  and  the 


352  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

want  of  courage  and  manhood  in  the  favored  few,  who  dissi- 
pated in  wasteful  luxury  the  best  of  all  the  toilers  produced, 
left  the  empire  enervated  and  spiritless.  Barbarians  who  had 
fought  in  the  armies  of  the  emperors  became  qualified  to 
lead  armies,  and  Alaric,  who  had  been  favored  by  Theodosius, 
led  the  Goths  from  their  settlements  south  of  the  Danube, 
where  many  of  them  had  embraced  the  Christian  religion,  into 
Illyricum  and  Greece  and  thence  into  Italy,  closing  his  tri- 
umphant career  with  the  sacking  of  Rome  in  410. 

Contemporaneous  with  this  movement  of  the  Goths  there 
w^as  an  irruption  of  the  Vandals,  Suevi  and  Alani  into  Gaul 
and  thence  into  Spain,  where  they  established  permanent  set- 
tlements and  partitioned  the  country  among  the  tribes.  In 
419  Ataulf  as  king  of  the  Visigoths  founded  a  monarchy  in 
southwestern  Gaul.  In  429  the  Vandal  king,  Genseric,  crossed 
into  Africa  with  his  army  and  their  families  and  established 
his  authority  there.  He  was  recognized  by  the  Emperor  soon 
after  and  took  Carthage  in  439.  The  movements  of  these 
Germanic  tribes  were  not  solely  in  the  form  of  attacks,  start- 
ing from  their  homes  beyond  the  great  rivers,  but  were  in 
part  migrations  into  new  homes  assigned  them  by  the  em- 
perors. Goths,  Vandals  and  Franks  learned  Roman  methods 
before  achieving  great  victories.  In  451  the  Huns  under 
Attila  attacked  the  empire  and  invaded  Gaul.  Attila  came  as 
the  ruler  of  a  great  dominion,  including  not  only  Huns  but 
many  German  tribes.  He  drove  the  Goths  before  him,  who 
in  turn  united  with  the  Romans  and  aided  in  his  defeat.  In 
455  the  Vandals  under  Genseric  invaded  Italy  from  the  south 
and  sacked  Rome.  In  476  Odoacer,  the  Goth,  was  proclaimed 
king  by  the  barbarian  mercenaries  in  Italy,  and  although  he 
nominally  recognized  the  authority  of  the  emperor  of  the 
east  and  received  the  style  patrician,  all  real  power  was  in  his 
hands.  Though  a  Goth,  he  recognized  the  Roman  laws,  and 
used  the  Roman  system  oif  administering  them.  He  took  one- 
third  of  the  lands  of  the  great  proprietors  and  distributed 
them  among  his  followers.  Odoacer  was  overthrown,  not  by 
Romans,  but  by  the  Ostrogoths,  who  under  Theodoric  in- 
vaded Italy  with  their  wives,  children  and  chattels  from  the 


MEDIAEVAL  EUROPE  353 

Balkans,    where   they   had   tarried   when   their   brethern   the 
Visigoths  moved  westward. 

Theodoric  ruled  Romans  by  Roman  law  and  Goths  in  ac- 
cordance with  their  own  customs.  He  provided  for  his  people 
from  the  lands  confiscated  by  Odoacer,  a  great  part  of  the 
holders  of  which  had  been  killed  in  battle.  The  Goths  were 
judged  by  their  counts,  and  where  a  controvery  arose  between 
Goth  and  Roman,  the  case  was  heard  by  a  mixed  court.  He 
had  his  body  guard  and  its  chief  officers  of  Goths  and  also 
a  full  establishment  of  Roman  officials.  Theodoric  extended 
his  rule,  not  only  over  Italy,  but  also  over  the  Germanic  peo- 
ple in  Rhaetia  and  Noricum,  and  over  southern  Gaul  and 
Spain.  The  traditions  of  the  Lombards  related  that  they  had 
dw^elt  on  the  Scandinavian  peninsula,  whence  they  had  crossed 
the  Baltic  into  Germany  and  pressed  their  way  dow^n  to  the 
Danube.  In  552  Justinian's  general  Narses  employed  5,000 
of  them  as  auxiliaries  in  his  war  in  Italy,  where  they  learned 
of  its  fertility  and  desolation.  In  568,  under  the  leadership 
of  Alboin,  whom  they  had  elected  king,  the  whole  nation,  men, 
women,  children,  slaves  and  chattels,  crossed  the  Alps  and 
descended  into  Venetia,  whence  they  spread  over  northern 
Italy.  They  came  with  primitive  German  customs,  divided 
into  tribes  or  clans  led  by  elective  chiefs  called  Aldanes. 
The  tribes  united  in  choosing  a  king  when  war  rendered  con- 
cert of  action  necessary,  but  his  authority  seems  to  have  prac- 
tically terminated  when  war  was  over.  After  Alboin  had  been 
murdered  and  Clepho,  his  successor,  killed  by  a  slave,  they 
chose  to  do  without  a  king  for  ten  years,  and  the  tribes  ranged 
over  Italy  and  across  the  Alps  into  Provence.  Settlements 
were  made  by  them  in  various  parts  of  the  peninsula  along- 
side the  Romans  and  remnants  of  the  Goths.  The  Lombards 
were  fierce  and  warlike,  but  never  established  a  firm  dominion 
over  all  Italy,  though  they  became  the  dominant  portion  of  its 
population.  They  retained  their  ancient  customs  and  laws 
more  persistently  than  the  Goths,  and  in  643  their  king, 
Rothari,  published  a  compilation  of  their  laws,  which  was 
promulgated,  not  as  emanating  from  his  authority  alone,  but 
with  the  counsel  of  his  witan  and  the  assent  of  the  armed 


354  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

folk-moot  of  the  Lombard  nation.  It  prescribes  the  were  geld 
to  be  paid  for  homicide,  laws  against  armed  violence,  rules  of 
inheritance  and  of  the  obligation  of  the  follower  to  his  lord, 
and  for  judicial  combats.  The  people  were  divided  into  free- 
men and  aldu,  serfs,  who  tilled  the  soil.  It  was  the  Lombard 
invasion  that  caused  the  imperial  governors  to  remove  from 
Rome  to  the  inaccessible  Ravenna,  where  the  shadow  of  im- 
perial power  lingered  for  a  time,  circumscribed  within  a  very 
narrow  compass. 

During  the  reign  of  Odoacer  in  Italy  the  Salian  Franks 
under  their  king,  Clovis,  invaded  Gaul  from  their  home  on 
the  east  of  the  Rhine.  By  force  of  arms  he  extended  his  do- 
minions on  both  sides  the  Rhine,  and  overthrew  the  empire 
of  the  Visigoths  in  Gaul.  He  ruled  as  a  fierce  and  bloody 
soldier.  The  Merovingian  dynasty  founded  by  him  lasted 
nominally  from  481  to  751.  With  the  vast  increase  in  the 
territory  ruled  by  Clovis  and  his  successors  came  also  a 
corresponding  increase  of  arbitrary  power.  The  ancient  Ger- 
manic custom  of  deciding  public  questions  in  general  assem- 
blies of  the  people,  which  was  entirely  practicable  for  a  small 
compact  tribe,  speaking  a  common  language,  became  impos- 
sible when  dominion  was  extended  over  so  large  a  territory, 
including  many  tribes  differing  in  language  and  customs  from 
each  other.  The  power  to  rule  was  acquired  through  military 
supremacy,  and  naturally  the  king  became  a  military  despot, 
who  soon  ceased  to  consult  even  the  warriors  of  his  native 
race.  The  king  was  distinguished  from  his  followers  by  wear- 
ing long  hair,  a  crown  and  using  a  kingly  spear.  After  the 
conquest  of  Gaul  Clovis  assumed  the  patrician  robe  of  Rome. 
At  his  palace  he  was  surrounded  by  his  companions  in  arms, 
bound  to  his  person  by  a  special  oath  of  fidelity.  In  the 
royal  household  the  chief  was  styled  Mayor  of  the  Palace,  and 
was  the  highest  official  under  the  king.  After  him  came  the 
Marshal,  having  charge  of  the  royal  stables,  the  Comes  Palatii 
his  legal  adviser  and  assessor,  the  Treasurer  and  Royal  Sec- 
retary. These  exercised  their  functions  under  the  king's  com- 
mands at  the  palace  or  on  any  mission  on  which  he  might 
send  them.     The  kingdom  was  divided   into  counties,   over 


MEDIAEVAL  EUROPE  355 

each  of  which  was  placed  a  count.  In  the  Germanic  part  of 
the  kingdom  the  counties  corresponded  with  the  tribes,  and 
in  the  Roman  with  a  city  with  its  dependent  district.  The 
count  was  miHtary  leader,  judge  and  taxing  officer.  Several 
counties  were  under  a  duke  in  some  parts  of  the  realm,  who 
became  the  commander  of  the  combined  military  forces  with 
general  control  over  the  counts.  The  counts  and  dukes  were 
assisted  by  deputies,  who  filled  their  places  when  absent. 
Beneath  these  there  was  a  headman  over  each  of  the  hundreds 
into  which  a  county  was  divided,  who  was  a  judge  in  petty 
causes  in  time  of  peace  and  head  man  of  his  hundred  in  time 
of  w^ar.  At  stated  periods  the  count  went  into  each  hundred 
and  disposed  of  causes  in  a  public  assembly,  being  assisted  by 
chief  men  of  the  hundred,  whom  he  called  to  his  aid.  In 
this  court  the  count  exercised  full  power  and  disposed  of  life 
and  property.  Great  crimes  were  punished  with  death,  but 
the  family  of  a  murdered  man  might  condone  the  offense  on 
the  payment  of  a  sum  of  money.  Trials  were  conducted  in  va- 
rious forms,  compurgations  and  combats  were  allowed  among 
the  Ripuarians,  but  not  among  the  Salic  Franks,  and  ordeals 
were  resorted  to  as  well  as  the  testimony  of  witnesses.  Be- 
sides the  officers  named  the  king  had  his  bailiffs  in  charge  of 
the  crown  lands,  from  which  he  derived  an  important  part 
of  his  revenue.  Aside  from  these  the  revenues  of  the  king 
Vv'ere  derived  from  custom  dues  on  the  frontiers,  fines  and 
compositions  in  the  courts  and  taxes  charged  against  each 
county,  collected  and  remitted  by  the  count. 

By  the  time  of  Clovis  German  people  were  scattered 
throughout  those  parts  of  Europe  that  had  been  dominated  by 
the  Romans,  and  German  customs  variously  modified  by  new 
environments,  ripened  into  laws.  Even  where  the  Roman 
element  was  dominant  changed  conditions,  the  decay  of  learn- 
ing and  stagnation  of  all  commercial  and  industrial  pursuits 
led  to  innovations  in  the  law.  The  diversity  of  customs  and 
the  tenacity  with  which  the  invaders  held  to  their  own  led  to 
the  application  to  each  person  of  the  law  of  the  tribe  to 
which  he  belonged  rather  than  the  laws  of  the  territory  which 
he  inhabited.     The  customs  of  illiterate  barbarians  did  not 


356  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

cover  anything  like  the  field  of  the  Roman  law  but  were 
adapted  to  their  needs  and  were  rules  of  action  and  of  right 
which  they  had  learned  in  their  tribes.  Great  diversity  of 
conditions,  lack  of  a  government  with  power  extending  over 
any  large  territory  for  any  considerable  period,  poverty,  lack 
of  intercourse  between  distant  people  and  general  ignorance 
and  illiteracy  were  conditions  which  naturally  led  to  very 
great  diversity  of  customs  and  local  laws.  From  Scandinavia 
to  Spain  and  Italy  the  people  of  each  town  and  community  of 
any  considerable  size  had  its  own  peculiar  usages.^  To  col- 
late and  trace  the  changes  in  even  those  rules  that  became  the 
local  laws  for  considerable  districts  would  be  a  stupendous 
task.  Traces  of  many  of  these  local  customs  may  still  be 
found  in  existing  laws,  but  increasing  learning  and  intercourse 
constantly  tend  to  uniformity  of  laws. 

The  spirit  of  the  German  people  had  always  been  opposed 
to  polygamy.  Clovis  became  a  Christian  and  was  baptized^ 
but  domestic  virtue  was  something  almost  unknown  in  the 
palaces  of  the  Merovingians.  The  Franks  maintained  their 
own  system  of  laws,  which  Montesquieu  says  were  compiled 
after  quitting  their  own  country  by  the  sages  of  the  nation,^ 
and  the  customs  of  the  German  tribes  which  he  subdued  were 
also  compiled  by  Clovis'  order.  The  Franks  had  reached  that 
stage  where  title  to  the  land  on  which  the  possessor  dwelt  was 
recognized,  and  the  Salic  law  of  descent  was:  "i.  If  a  man 
dies  without  issue  his  father  or  mother  shall  succeed  him.^ 
2.  lif  he  has  neither  father  nor  mother  his  brother  or  sister 
shall  succeed  him.  3.  If  he  has  neither  brother  or  sister  the 
sister  of  his  mother  shall  succeed  him.  4.  If  his  mother  have 
no  sister  the  sister  of  his  father  shall  succeed  him.  5.  If  his 
father  has  no  sister  the  nearest  relation  by  the  male  side  shall 
succeed.  6.  Not  any  part  of  the  Salic  land  shall  pass  to  the 
females,  but  it  shall  belong  to  the  males,  that  is  the  male 
children  shall  succeed  their  father."^  The  kingdom  was 
treated  as  the  property  of  the  king,  and  its  integrity  was  not 

^  Continental  Legal  History  Series,  Vol.  i. 
^  Spirit  of  Laws,  p.  196. 
^U.,  p.  Z2^. 


MEDIAEVAL  EUROPE  357 

protected  by  a  rule  of  succession  which  passed  the  undivided 
power  from  hand  to  hand.  On  the  death  of  Clevis  his  ifour 
sons  fought  for  supremacy,  and  similar  civil  wars,  the  sole 
excuse  for  which  was  the  ambition  of  rulers,  were  fought  in 
succeeding  generations.  The  Merovings  were  bloody,  treacher- 
ous and  licentious,  and  like  most  other  dynasties  of  absolute 
rulers,  later  generations  inherited  the  vices  without  the  ability 
of  the  founder.  Though  the  nominal  rule  of  the  kings  con- 
tinued for  four  generations  thereafter,  the  real  powers  af 
government  were  assumed  by  the  mayor  of  the  palace  in  642, 
from  which  time  forward  the  kings  were  imbeciles  and  the 
names  prominent  in  history  are  Pepin  and  Charles  Martel, 
mayors  of  the  palace,  the  latter  of  whom  commanded  in  the 
great  battle  {^2^2')  which  turned  back  the  tide  of  Mohamme- 
dan invasion. 

The  history  of  Spain  under  the  rule  of  the  Visigoths  is  ob- 
scure. Though  they  with  the  Suevi  and  Alani  gained  a  lodg- 
ment there  early  in  the  fifth  century,  it  was  not  until  after 
their  defeat  by  Clovis  at  Poitiers  that  they  transif erred  the 
seat  of  their  government  from  Gaul  to  Spain,  about  510. 
The  Goths  constituted  but  a  small  part  of  the  population. 
Their  government,  though  monarchical,  was  elective,  and  the 
subject  Romans  were  ruled  by  Roman  law.  The  church  early 
gained  a  strong  hold  on  the  Spanish  people,  and  in  course  of 
time  the  Goths,  who  were  Arians,  through  motives  of  policy 
were  led  by  their  king  to  adopt  the  orthodox  faith.  The  suc- 
cession to  the  throne  was  the  occasion  of  a  great  number  of 
civil  wars.  The  people  at  the  time  of  the  Saracen  invasion  in 
711  were  divided  into  a  few  very  rich  and  a  dependent  multi- 
tude of  slaves.  They  offered  but  a  weak  resistance  to  the 
Mohammedans,  who  completed  the  conquest  of  the  country 
within  the  next  two  years  and  put  a  final  end  to  the  Visigothic 
rule.  The  division  of  the  state  for  governmental  purposes 
was  similar  to  that  of  Gaul,  the  ancient  Roman  civitates  being 
used  as  the  basis  of  local  government. 

The  long  and  vigorous  reign  of  Charlemagne,  y68  to  814, 
stands  out  in  bold  relief  in  a  long  period  of  darkness.  Of  his 
eminent  abilities  there  can  be  no  doubt,  and  while  his  morals 


358  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

lacked  much  of  even  an  approximation  to  virtue,  he  yet  was 
far  better  than  his  Merovingian  predecessors.  He  not  only 
restored  to  the  kingdom  all  that  had  at  any  time  before  be- 
longed to  it,  but  for  the  first  time  in  history  he  joined  Ger- 
many, Gaul,  Italy  and  northern  Spain  in  a  single  empire. 
Though  his  government  v^as  administered  on  substantially  the 
same  system  as  that  of  his  predecessors,  it  w^as  infused  v^ith 
vitality  through  his  remarkable  energy  and  industry.  He  w^as 
not  a  stranger  to  any  part  of  his  vast  empire.  Not  only  did 
he  visit  every  quarter  in  person  but  his  special  Missi  Dominici, 
traveling  legates,  were  constantly  bringing  him  information 
of  the  condition  of  affairs  in  every  part  of  the  realm.  Like 
all  other  rulers,  who  before  his  time  had  acquired  extensive 
dominion  in  the  western  empire,  he  felt  the  charm  of  the 
Roman  imperial  name.  In  800  Pope  Leo  III  crowned  him  in 
St.  Peters  as  Augustus,  Emperor  of  the  Romans.  The  re- 
ceipt by  Charles  of  this  title  at  the  hands  of  the  Pope  carried 
with  it  a  recognition  on  the  part  of  the  military  ruler  of  the 
west  of  the  spiritual  supremacy  of  the  Pope,  and  throughout 
many  succeeding  centuries  this  recognition  carried  vastly 
more  weight,  and  the  precedent  was  of  vastly  more  value,  to 
the  Pope,  than  the  coronation  was  to  Charles,  whose  dominion 
had  resulted  from  his  own  capacity  without  important  aid 
from  the  church.  In  another  aspect  this  recognition  of  spirit- 
ual authority  was  important.  It  was  followed  by  a  recogni- 
tion of  the  need  of  a  moral  basis  for  the  exercise  of  authority. 
He  required  all  his  subjects  above  the  age  of  twelve  to  take 
a  new  oath  of  allegiance  to  him  as  Emperor,  to  be  administered 
by  the  local  clergy,  who  were  required  to  warn  all,  'That  this 
vow  of  homage  was  not  merely  a  promise  to  be  true  to  the 
Emperor  and  to  serve  him  against  his  enemies,  but  a  promise 
to  live  in  obedience  to  God  and  His  laws,  according  to  the 
best  of  each  man's  strength  and  understanding.  It  was  a  vow 
to  abstain  from  theft,  oppression  and  injustice,  no  less  than 
from  heathen  practices  and  witchcraft,  a  vow  to  do  no  wrong 
to  the  churches  of  God  nor  to  injure  widows  and  orphans,  cwf 
whom  the  Emperor  is  the  chosen  proctector  and  guardian." 
He  taught  submission  to  the  moral  law  and  recognized  the 


MEDIAEVAL  EUROPE  359 

church  as  the  representative  of  the  Holy  Empire.  The  gov- 
ernment of  Charles,  like  that  of  his  predecessors,  w^as  thor- 
oughly despotic  in  character.  It,  like  all  despotisms,  derived 
its  qualities  from  the  ruler.  To  carry  his  v^ill  into  effect  he 
selected  men  who  carried  out  his  policies,  and  like  every  other 
great  leader  he  had  a  keen  perception  of  the  merits  and  capa- 
cities of  men.  To  preserve  the  system  in  its  vigor  the  energy 
and  capacity  of  Charles  himself  w^as  required.  It  has  been  the 
fate  of  every  despotism  to  have  the  successors  of  a  great 
founder  wanting  in  some,  and  often  in  all,  the  essential  quali- 
ties which  render  despotism  a  refuge  irom  anarchy.  Under 
the  weak  and  good  natured  reign  of  his  son  Louis  the  empire 
crumbled.  The  practice  of  dividing  it  as  an  inheritance  among 
the  children  of  the  ruler  obtained  and,  coupled  with  revolts  of 
local  rulers,  resulted  in  the  complete  dismemberment  of  the 
state  after  the  death  of  Louis.  The  acceptance  of  the  im- 
perial crown  from  the  hands  of  the  Pope  by  Charles  bore  the 
full  measure  of  its  fruits  under  the  reign  af  the  pious  and 
well  meaning  Louis,  who  acknowledged  the  supremacy  of  the 
Pope  in  spiritual  affairs  without  exacting  in  return,  as  his 
father  had  done,  an  acknowledgment  by  the  Pope  of  the  tem- 
poral superiority  of  the  emperor.  The  submissiveness  of 
Louis  to  Papal  authority  and  his  exemption  of  church  prop- 
erty and  its  tenants  from  taxes  and  military  service,  creating 
the  tenure  known  as  frank  almoin,  which  required  merely 
prayers  for  the  welfare  of  the  emperor  and  his  children  and 
the  empire,  was  of  immense  advantage  to  the  church  and 
correspondingly  weakened  the  state.  The  great  empire  of 
Charles  was  divided  among  his  grandsons,  and  the  Prankish 
principle  of  division  was  continued  among  their  descendants. 
The  right  to  rule  was  treated  as  the  property  of  the  ruler, 
rather  than  a  trust  exercised  for  the  good  of  the  people.  This 
breaking  into  fragments,  with  constant  warfare  between  rival 
claimants  of  territory,  became  chronic  among  the  Carlovin- 
gians,  as  it  had  been  with  the  Merovingians. 

In  the  latter  part  of  the  eighth  century  the  Vikings  made 
their  appearance  in  England  and  on  the  coasts  of  the  Prankish 
empire.     They  were  a  hardy  race  of  navigators,  dwelling  on 


36o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  Danish  and  Scandinavian  peninsulas,  whence  they  issued 
in  growing  numbers  and  with  increasing  boldness  to  pillage 
those  parts  of  the  country  most  accessible  from  their  boats. 
From  the  time  of  Tacitus  they  had  been  noted  as  sailors,  and 
they  now  appeared  as  pirates  and  most  determined  warriors. 
In  an  age  when  might  made  right,  it  is  perhaps  invidious  to 
designate  them  by  a  name  which  is  now  so  opprobrious.  It  is 
difficult  to  draw  a  clear  line  between  their  robberies  and  those 
of  the  organized  forces  on  the  continent.  That  they  were  in 
the  lead  of  all  other  people  as  navigators  is  clear,  and  it  is 
said  that  they  fought  with  superior  arms  and  protected  by 
coats  of  mail.  That  their  object  in  their  raids  was  plunder 
rather  than  the  acquisition  of  land,  and  that  they  scattered  in 
numerous  fleets  and  attacked  widely  distant  places  under  sepa- 
rate leaders,  exhibits  a  difference  in  methods,  if  not  in  prin- 
ciple. Their  raids  increased  in  numbers  and  boldness,  till  in 
911  Charles  the  Simple  granted  them  an  ample  district  be- 
tween the  Somme  and  Seine,  on  condition  that  it  should  be 
held  as  a  fief  under  his  sovereignty.  The  Norsemen  did 
homage  as  his  vassals,  though  with  ill  grace,  and  accepted  the 
Christian  religion.  After  this  settlement  the  piratical  inroads 
were  substantially  at  an  end. 

We  have  seen  how,  proceeding  from  Italy  as  a  base,  the 
Roman  power  was  extended  in  all  directions,  and  how  Roman 
rule  was  imposed  on  the  natives  of  Spain,  Gaul,  Britain  and  a 
portion  of  Germany.  We  have  also  seen  how  incoming  waves 
from  the  unknown  regions  of  new  and  unsubdued  people  swept 
back  from  north  and  east  over  all  the  western  portion  of  the 
empire,  how  Goths  and  Lombards  became  intermingled  with 
the  ancient  people  of  Italy,  how  Vandals,  Goths  and  Suevi 
were  settled  in  Spain,  and  all  overthrown  by  the  Saracens, 
how  successive  irruptions  of  Germanic  people  had  broken  into 
Gaul,  with  the  final  establishment  of  the  great  Prankish  em- 
pire, and  how  as  a  result  of  these  movements  of  people  the 
empire  had  fallen  and  the  Romans  had  ceased  to  be  the  ruling 
element  in  either  quarter.  In  our  effort  to  gain  a  clear  view 
of  the  forces  which  were  at  work  during  what  is  regarded  as 
the  dark  ages  of  European  history,  we  have  still  to  trace  the 


MEDIAEVAL  EUROPE  361 

growing  power  and  influence  of  the  church  and  the  monastic 
institutions.  Out  of  the  Asiatic  possessions  from  the  incon- 
spicuous Judean  province  was  brought  to  Rome  the  rehgious 
and  moral  teachings  of  a  person  so  obscure  as  not  to  be 
known  to  the  Roman  repubhc  of  his  time.  That  reHgion 
proclaimed  the  universal  brotherhood  of  man  and  fatherhood 
of  God.  The  Jews  looked  for  a  temporal  ruler  in  their  Mes- 
siah, who  should  establish  their  supremacy  over  the  other  na- 
tions of  the  earth.  They  failed  to  grasp  the  meaning  of  his 
teachings.  They  did  not  perceive,  nor  have  Christians  in  suc- 
ceeding ages  realized,  that  the  moral  principles  he  announced 
contain  the  vital  principle  on  which  human  relations  every- 
where and  at  all  times  should  be  regulated,  tliat  these  prin- 
ciples are  the  universal  constitution,  on  which  all  governments 
and  all  laws  must  be  based  in  order  to  develop  the  highest 
type  of  human  society  and  the  maximum  of  human  happiness. 
Though  Caesar  held  power  of  life  and  death  over  all  his  vast 
empire,  and  his  will  was  law  to  the  100,000,000  or  more  in- 
habitants of  the  countries  ruled  from  Rome,  Christs  sermon 
on  the  mountain  to  a  few  followers,  unheard  and  unknown  to 
the  great  multitude  of  people  of  his  time,  has  exercised  an  in- 
fluence on  the  people  of  after  times  incomparably  superior  to 
that  of  all  the  Caesars.  Yet  its  full  meaning  and  significance 
are  but  dimly  perceived  and  imperfectly  understood,  even  by 
the  wisest,  and  to  this  day  rulers  and  leaders  in  the  most  en- 
lightened lands  are  regarded  as  exempted  from  obedience  to 
the  golden  rule,  "Therefore  all  things  whatsoever  ye  would 
that  men  should  do  to  you,  do  ye  even  so  to  them,  for  this  is 
the  law  and  the  prophets."  The  impression  seems  to  prevail 
that  the  law  of  necessity  applies  with  especial  and  controlling 
force  to  rulers  and  law  makers,  and  exempts  them  from  obed- 
ience to  the  moral  law\  The  unselfishness  and  self-sacrificing 
spirit  of  Christ  are  somewhat  distasteful  to  the  average  man, 
and  self  denial  is  a  virtue  seldom  looked  -for  and  more  seldom 
found  in  high  stations. 

Whether  the  moral  teachings  of  Christ  be  regarded  as  pri- 
marily for  the  happiness  of  the  souls  of  men  in  a  future  state, 
or  as  essential  to  human  welfare  in  this  life,  is  unimportant  for 


?,^2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

our  present  purpose,  for  we  are  only  concerned  with  the  moral 
law  as  a  guide  to  human  conduct.  There  seems  little  if  any 
room  to  doubt  that  Christian  doctrines  were  taught  at  Rome 
by  the  apostles  Peter  and  Paul  with  some  success,  and  that 
they  gathered  about  them  a  community  of  converts  to  the 
Christian  faith.  In  like  manner  congregations  of  believers 
were  gained  in  the  great  centers  of  population  in  the  east  and 
in  Greece.  The  leading  characteristics  of  the  earliest  Chris- 
tian societies  were  the.  spirit  of  brotherhood  and  equality,  and 
contempt  for  power,  wealth  and  social  distinction.  For  the  first 
three  centuries  Christians  were  persecuted,  and  no  attempt 
was  made  to  gain  temporal  power  with  Christianity  as  a  foun- 
dation. Nothing  could  present  a  stronger  contrast,  than  the 
brutality  and  viciousness  of  Roman  society  as  exhibited  at  the 
public  combats  and  butcheries  in  the  arena  and  the  licientious- 
ness  and  depravity  in  the  palace  and  houses  of  the  wealthiest 
and  most  prominent  citizens,  and  the  humble  and  devout 
Christian  societies  of  the  time  of  Nero.  •  With  growth  in 
numbers  came  increased  influence  and  ambition  to  lead.  As 
early  as  313  the  existence  oif  ecclesiastical  corporations  with 
common  property  was  recognized  by  the  edict  of  Milan,  and 
in  321  their  right  to  acquire  property  by  bequest  was  con- 
firmed. With  the  conversion  of  Constantine  the  days  of  ex- 
treme Christian  humility  were  over,  and  the  clergy  labored  to 
add  to  the  wealth  and  power  of  the  church  with  such  success 
that,  in  370,  Valentinian  deemed  it  necessary  to  prohibit  the 
clergy  from  receiving  bequests  from  women.  Not  from  any 
inherent  weakness  of  principles,  but  from  the  influences  at 
work  on  the  men  who  became  the  representatives  of  Chris- 
tianity, the  purity  of  its  doctrines  became  obscured,  and  the 
every  day  worship  in  the  churches  became  debased  to  the  ado- 
ration of  images  and  relics,  to  worship  of  the  virgin  and  the 
saints,  of  spurious  pieces  of  the  true  cross  and  other  visible 
objects,  supposed  to  be  possessed  olf  mysterious  power  by 
reason  of  their  association  with  some  miraculous  manifesta- 
tion. Purity  of  life,  so  distasteful  to  the  fierce  and  head- 
strong barbarians,  could  not  be  enforced,  so  in  lieu  of  it  the 
church  exacted  tribute,  penance,  and  above  all   faith  in  the 


MEDIAEVAL  EUROPE  363 

vicarious  atonement,  and  granted  absolution  from  sins  com- 
mitted. Elaborate  ceremonies,  altars,  images,  substitutes  for 
the  idolatries  of  the  barbarians,  obscured  and  took  the  place  of 
the  worship  of  the  unseen,  living  spirit,  and  of  an  effort  to 
follow  the  moral  law  in  its  purity.  As  early  as  the  second 
century  there  seems  to  have  been  some  claim  of  superiority 
over  other  churches  put  forth  by  that  of  Rome.  Little  by 
little  the  Roman  bishop  assumed  authority  over  the  other 
churches.  At  the  council  of  Nicaea,  325,  the  rank  of  the  three 
patriarchates  was  established,  first,  Rome,  second,  Alexandria, 
third,  Antioch.  By  the  end  of  the  fourth  century  the  claim  of 
precedence  had  gained  such  recognition,  that  questions  arising 
in  the  various  churches  of  the  west  were  submitted  to  the  Ro- 
man bishop,  whose  decretals  were  accepted  as  authoritative, 
and  Innocent  I,  402-417,  conceived  the  universal  ecclesiastical 
supremacy  of  Rome.  The  establishment  of  this  supremacy 
in  practice  was  of  slow  and  uneven  growth.  Leo,  440-461, 
established  the  right  of  appeal  by  a  bishop  from  the  decision 
of  his  metropolitan  to  Rome,  and  thereby  assumed  pontificial 
authority  to  pass  judgment  on  the  acts  and  claims  of  the 
metropolitans  as  his  inferiors.  Under  Gregory  I,  590-604, 
the  territorial  possessions  of  the  church  were  greatly  increased, 
and  under  his  vigorous  administration  the  power  and  influence 
of  the  pontificate  strengthened.  Prior  to  Gregory  III  the 
privileges  of  the  popes  had  been  recognized  and  confirmed  by 
the  eastern  emperor,  but  in  731  Gregory  excommunicated  the 
Iconoclasts,  and  in  return  the  Emperor  confiscated  the  church 
properties  within  the  territories  which  still  submitted  to  his 
rule.  Thenceforth  the  papal  authority  ceased  to  be  in  any 
degree  dependent  on  the  imperial.  In  752  Pepin  was  anointed 
and  crowned  king  of  the  Franks  by  the  papal  legate  Boniface, 
and  in  754  he  handed  over  to  Pope  Stephen  III  an  extensive 
territory,  which  he  had  wrested  from  the  Lombards,  including 
Ravenna,  to  be  held  and  enjoyed  by  the  pontiffs  of  the  apos- 
tolic see  forever,  and  this  grant  was  largely  increased  by  his 
successor  Charlemagne.  Thus  in  the  course  of  about  750 
years  from  the  days  of  Peter  and  Paul,  who  laid  no  claim  to 
worldly  power,  the  head  of  the  church  extended  his  power 


364  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

over  the  great  ecclesiastical  organization  which  had  spread 
over  Europe,  and  became  a  temporal  ruler  over  a  considerable 
territory.  At  the  end  of  the  eighth  century  the  head  of  the 
church  was  not  only  a  temporal  ruler  over  the  papal  states  in 
Italy,  but  he  assumed  the  power  to  dispense  with  the  ob- 
servance of  the  canonical  law,  under  conditions  to  be  de- 
termined by  himself,  and  the  vast  power  of  conferring 
privileges  on  monastic  and  church  establishments  throughout 
the  dominions  of  the  western  monarchies.  The  choice  of 
bishops  was  subjected  to  his  approval  and  disputes  on  mat- 
ters ecclesiastical  were  appealable  to  Rome,  where  full  juris- 
diction was  asserted.  The  conquests  of  the  Saracens  in  the 
east  removed  the  rivalry  of  Antioch,  Jerusalem  and  Alex- 
andria, and  the  west  became  the  seat  of  that  faith  which  was 
born  in  Asia.  The  coronation  olf  Charlemagne  by  the  Pope 
was  an  assumption  on  the  part  of  Leo  of  spiritual  superiority 
over  the  ruler  of  the  ''Holy  Roman  Empire."  Leo  recognized 
the  temporal  power  of  Charles,  and  in  return  Charles  acknowl- 
edged the  spiritual  rule  of  Leo.  The  weak  Louis  became  sub- 
servient to  the  head  of  the  church.  Following  this  exaltation 
of  the  head  of  the  church  to  temporal  power  came  a  period  of 
misfortune  and  of  moral  degradation,  in  which  the  pontificate 
became  a  subject  of  corrupt  bargaining,  from  which  it  did  not 
recover  till  the  election  of  Gregory  the  V,  996-999.  Though 
in  course  of  time  despotic  characters  were  developed,  the  office 
of  Pope  was  always  elective,  and  the  prevailing  spirit  of  the 
church  was  democratic. 

Another  product  of  the  Christian  religion  was  the  monastic 
establishments,  which  exercised  such  a  profound  influence 
throughout  Europe  during  the  darkest  period  of  its  history. 
The  life  of  the  ascetic  hermit  had  been  recommended  by 
Gautama  as  that  most  favorable  to  spiritual  purification,  and 
religious  societies,  similar  to  the  monastic  institutions  of  the 
Christians,  were  formed  under  his  teachings  and  became  very 
numerous  among  Buddhists.  The  leading  resemblance  of  the 
Christian  and  Buddhist  societies  was  in  the  close  association 
of  men,  whose  lives  were  devoted  to  religious  exercises  and 
aims,  dwelling  together  in  celibacy  under  rigorous  rules  of 


MEDIAEVAL  EUROPE  365 

life,  to  which  they  voluntarily  submitted.  The  leading  differ- 
ence was,  that  the  doors  of  the  Buddhist  institutions  were  open 
to  pass  out  as  well  as  in,  and  the  individual  was  at  all  times 
loaded  with  the  burden  of  his  own  salvation  through  good 
deeds  and  purification  of  his  spirit,  while  with  the  Christians 
the  doors  were  closed  to  those  who  would  withdraw%  and 
spiritual  salvation  was  made  to  depend,  not  on  deeds  and  in- 
dividual merit,  but  on  ifaith  and  conformity  to  the  require- 
ments of  the  church.  From  the  most  ancient  times  the  life 
of  the  hermit  has  been  adopted  by  men  of  a  certain  peculiar 
cast  of  mind,  and  early  in  the  history  of  Christianity  solitary 
dwellers  in  the  desert  gained  great  renown  for  sanctity,  among 
the  most  noted  of  whom  were  Paul  and  Anthony,  natives  of 
Egypt  in  the  third  and  fourth  century. 

The  first  great  monastic  society  was  founded  by  Pachomius 
on  the  island  of  Tabennae  in  the  Nile  in  the  first  half  of  the 
fourth  century.  Under  the  rules  of  the  order  the  monks  were 
•distributed  into  cells,  each  containing  three  inmates,  known  as 
syncelli.  A  large  cluster  of  such  cells  was  called  a  laura,  in 
which  was  one  common  place  for  meals  and  assemblies.  Work 
and  food  were  apportioned  to  each  according  to  his  strength, 
and  the  dress  was  regulated,  consisting  of  a  linen  tunic  with 
a  goat  skin  upper  garment,  which  they  were  not  permitted  to 
take  off  at  meals  or  in  bed,  but  only  when  assembhed  for  the 
eucharist.  They  were  divided  into  twenty-four  groups,  and 
each  group  into  bands  of  tens  and  hundreds  under  decurions 
and  centurions,  all  under  an  Abbot,  who,  as  such  institutions 
multiplied,  was  subject  to  the  Superior.  The  finances  were 
managed  by  a  steward.  Their  usual  food  was  bread  and 
water,  with  occasional  oil,  salt,  fruit  and  vegetables  for  luxu- 
ries. Meals  were  eaten  in  silence,  each  wearing  a  cowl  to 
hide  his  face.  They  assembled  twice  daily  fior  common 
prayer,  and  for  communion  on  Saturdays  and  Sundays.  They 
tilled  their  lands  and  wove  mats,  baskets  and  in  course  of 
time  manufactured  many  other  articles  for  sale  for  the  com- 
mon fund.  Pachomius  induced  his  sister  to  found  a  convent 
of  nuns  under  similar  rules.  At  the  time  of  his  death  Pach- 
omius had  1,400  monks  in  his  own  monastery  and  7,000  under 


3>^  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

his  authority.  The  order  spread  rapidly  in  Africa,  Asia,  and 
then  into  Italy  and  western  Europe.  By  the  fifth  century 
the  numbers  are  said  to  have  increased  to  more  than  100,000 
in  Egypt  alone. 

In  529  Benedict  drew  up  his  celebrated  code  of  rules,  which 
became  the  law  of  the  very  numerous  Benedictine  monasteries 
which  spread  over  western  Europe.  Worship,  study,  work, 
obedience,  silence  and  humility,  were  the  leading  ideas  in-^ 
culcated.  This  code  was  elaborated  in  seventy-three  chapters. 
It  exhibits  a  strange  mixture  of  excellent  principles  and 
vicious  ones.  Monasteries  formed  under  this  code  were  vol- 
untary associations  of  men,  who  were  required  to  dispose  of 
all  their  private  property,  and  who  became  equals  on  entering 
the  society,  except  that  their  rules  were  enforced  by  an  Abbot 
elected  by  themselves,  and  all  important  matters  were  decided 
after  consultation  with  the  whole  body.  In  large  monasteries 
there  were  deans  selected  for  merit,  and  each  monastery  had 
its  steward,  charged  with  the  keeping  oif  its  supplies.  All 
labor  was  performed  by  the  monks,  who  took  turns  in  the 
kitchen.  Hours  of  work,  of  study  and  of  prayer,  were  regu- 
lated, as  were  all  matters  of  dress  and  of  eating.  Confession 
of  faults  was  enjoined,  penances,  fasts  and  scourgings  were 
imposed  for  breaches  of  the  rules  of  the  order,  with  expulsion 
as  the  ultimate  penalty  for  persistent  misconduct.  Guests 
were  entertained  by  the  Abbot  in  separate  apartments,  and  the 
monks  were  not  allowed  to  speak  to  them,  except  with  special 
permission.  A  probation  amounting  to  about  a  year  in  all 
was  required  of  applicants  seeking  to  join  the  order.  All 
strife  and  contention  were  prohibited,  and  no  monk  could  go 
out  into  the  world  without  leave  of  his  Abbot.  The  system 
required  the  exercise  of  the  virtues  of  industry,  study,  self 
denial  and  the  recognition  of  brotherly  equality.  These  lie 
at  the  foundation  of  all  social  progress.  It  also  exacted  rigid 
observance  of  religious  forms,  tending  to  evil  or  good  ac- 
cording to  the  spirit  of  the  individual,  and  seclusion  from  the 
outside,  wicked  world,  which  contracted  the  field  of  vision 
and  influence  and  dried  up  the  natural  sympathies  of  the 
monks,  while  protecting  them  from  the  dreaded  contamina- 


MEDIAEVAL  EUROPE  367 

tion  of  a  corrupt  society.  It  separated  the  sexes  and  defied 
the  imperative  law  of  reproduction.  In  this  it  prevented  that 
highest  and  purest  human  combination,  the  Christian  family, 
with  its  voluntary  devotion  to  succeeding  generations.  Con- 
vents were  also  established  for  females  with  similar  rules. 

The  rapid  rise  of  these  religious  societies  was  contempo- 
raneous with  the  decay  of  Roman  power  and  the  tide  of  Ger- 
manic invasion.  The  monastery  with  its  buildings,  its 
cultivated  lands,  its  work  shops  and  school,  became  a  promi- 
nent feature  of  all  Christendom,  not  only  on  the  continent  but 
in  the  British  Isles  as  well.  It  was  a  republic  of  peace,  indus- 
try, study  and  devotion,  amid  external  surroundings  of  war^ 
cruelty,  indolence  and  ignorance.  It  grew  in  wealth  and  im- 
portance by  reason  of  its  corporate  constitution  and  perpetual 
succession,  and  the  celibacy  of  its  inmates  yielded  no  heirs 
demanding  an  inheritance.  It  pffered  a  refuge  to  those  who 
wished  to  shun  the  hardness  of  the  outer  world.  Other  codes 
for  the  government  oif  monastic  societies  had  been  formulated 
before  that  of  Benedict,  notably  that  of  Basil,  which  became 
generally  followed  in  the  east,  and  numerous  modifications  of 
the  Benedictine  rules  were  made  in  after  times.  Many  so- 
cieties in  course  of  time  became  rich  and  licentious.  Abbots 
like  other  men  became  fond  of  power,  and  the  encroachments 
of  monastic  holdings  on  the  realms  of  the  rulers  excited 
jealousy  and  hostility. 

With  the  decline  of  the  empire  of  Charlemagne  and  the 
civil  wars  and  struggles  over  succession  to  local  authority 
arose  that  form  of  social  organization  and  land  tenure  known 
as  the  feudal  system.  With  the  Romans,  as  we  have  seen, 
land  was  treated  as  subject  to  ownership,  bargain  and  sale  in 
much  the  same  manner  as  chattels,  and  there  is  no  sharply 
drawn  line  in  the  law  between  landed  and  other  property. 
After  the  Germanic  tribes  gained  settled  habitations  and  rec- 
ognized title  to  tracts  adjacent  to  their  dwellings,  the  title 
of  the  possessor  was  a  full  and  perfect  one,  and  this  was 
termed  allodial  land.  Crown  lands,  conferred  on  favorites 
of  the  sovereign  by  the  kings  in  later  times,  were  termed 
benefices,  and  were  held  by  a  tenure  which  implied  at  first,  and 


368  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

finally  expressed,  a  compact  on  the  part  of  the  beneficiary  to 
support  his  benefactor.  From  the  practice  of  conferring 
estates  by  kings  upon  their  followers  in  times  of  wars  and 
seizures  df  the  lands  of  enemies  arose  the  feudal  system,  which 
became  such  a  prominent  feature  of  the  dark  ages.  The 
fundamental  idea  of  it  was  a  close  union  between  lord  and 
vassal  for  war.  The  ceremonies  of  conferring  a  fief  consisted 
of,  I.  Homage.  The  vassal  with  head  uncovered,  belt  un- 
girt  and  without  sword  or  spurs,  kneeling,  placed  his  hands 
between  those  of  his  lord  and  promised  to  become  his  man, 
from  thenceforth  to  serve  him  with  life  and  limb  and  worldly 
honor,  faithfully  and  loyally,  in  consideration  oif  the  lands 
which  he  held  under  him.  Homage  could  be  accepted  only 
by  the  lord  in  person.  2.  An  oath  of  fealty  by  the  vassal  to 
his  lord.  3.  Investiture,  which  consisted  in  putting  the  tenant 
into  possession.  This  was  done  sometimes  on  the  land  by 
the  lord  or  his  deputy,  and  sometimes  by  the  symbolical  de- 
livery of  a  turf,  stone  or  other  symbol. 

The  first,  and  perhaps  most  important  obligation  assumed 
by  the  vassal,  was  that  of  military  service  under  his  lord.  The 
amount  of  service  which  might  be  demanded  in  a  year  de- 
pended on  the  size  of  the  fief  and  the  usage  of  the  time  and 
place.  Forty  days  was  the  usual  term  for  a  knights  fee; 
during  which  he  must  attend  with  his  own  equipment  and  at 
his  own  expense.  Shorter  terms  were  required  for  smaller 
estates.  Old  men  and  women  must  send  substitutes  on  pain 
of  ^forfeiture  or  amercement.  The  terms  of  the  service  re- 
quired indicate  the  turbulent  and  disordered  state  of  society. 
The  wars  of  the  lord  were  mostly  with  near  neighbors,  and 
partook  more  of  the  character  of  forays  of  bandits  than  of 
organized  warfare.  In  some  places  the  obligation  of  the  vas- 
sal did  not  require  him  to  go  beyond  the  lord's  territory,  or 
more  than  a  day's  journey  from  it.  It  was  not  a  system  of 
public  defense,  but  an  organization  for  the  private  broils  of 
the  chief.  As  incident  to  feudal  tenures  the  lord  exacted:  i. 
Reliefs.  A  sum  of  money  required  to  be  paid  by  the  heir  of  a 
deceased  vassal  on  investiture  with  the  estate.  The  amount 
was  not  regulated  by  any  fixed  law  and  was  often  fixed  arbi- 


MEDIAEVAL  EUROPE  369 

trarily  by  the  lord.  2.  Fines  on  alienation  by  a  vassal  of  his 
estate.  This  arose  from  the  necessity  for  the  assent  of  the 
lord  to  an  alienation  by  the  vassal.  3.  Escheats  and  forfeitures 
through  failure  of  heirs  or  acts  or  omissions  which  worked 
a  forfeiture  of  the  tenant's  rights,  in  which  cases  the  estate 
reverted  to  the  lord,  and  this  was  aided  by  the  doctrine  oif 
corruption  of  blood,  by  which  an  heir  was  prohibited  from 
tracing  descent  through  an  attainted  ancestor.  4.  Aids. 
These  were  imposed  by  the  lords  on  various  pretexts,  notably 
to  raise  marriage  portions  for  his  sons  and  daughters,  to  pay 
expenses  of  distant  expeditions,  to  ransom  him  from  cap- 
tivity, and  generally  to  meet  extraordinary  demands  on  him. 
5.  Wardship.  During  the  minority  of  the  heir  the  lord  be- 
came his  guardian,  and  as  such  had  the  care  of  his  person 
and  charge  of  his  estate.  This  incident  seems  to  have  been 
confined  to  the  system  in  England,  Normandy  and  some  parts 
of  Germany,  but  in  France  the  custody  of  the  land  went  to 
the  next  heir,  and  of  the  person  to  the  nearest  kinsman  who 
could  not  inherit.  6.  Marriages.  In  England,  Normandy  and 
Germany  the  lord  assumed  the  right  to  choose  husbands  for 
female  wards,  and  in  later  times  to  dictate  the  marriages  of 
male  wards  also.  The  penalty  for  refusal  to  comply  with  the 
lord's  wish  was  forfeiture  of  the  value  of  the  marriage.  These 
incidents  of  vassalage  were  unknown  in  the  earliest  stages  of 
feudalism.  They  are  exhibitions  of  the  tendency  of  those 
holding  superior  power  to  unjustly  extend  it. 

The  obligation  of  the  lord  to  his  vassal  was  to  protect  him 
in  his  possession,  and  in  case  of  eviction  to  give  him  other 
lands  of  equal  value.  Where  large  estates  were  granted,  sub- 
infeudation followed  as  a  natural  sequence,  and  the  vassal  in 
turn  granted  portions  of  his  estate  to  sub-tenants,  who  did 
homage,  swore  fealty  and 'gave  military  service.  Thus  in 
time  there  v/as  developed  a  chain  of  tenancies  if  rom  the  king  as 
lord  paramount  down  to  the  tenants  of  the  smallest  holdings. 
The  feudal  system  was  not  originally  established  anywhere  by 
legal  enactment  of  the  law-making  power  of  a  great  state,  but 
was  the  outgrowth  of  customs  and  conditions  and  the  spirit 
of  the  times.     It  therefore  was  not  uniform,  but  varied  in  its 


,3/0     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

incidents  and  obligations  according  to  local  customs.  The  all 
pervading  essence  of  it  was  that  the  vassal  should  support  his 
lord,  right  or  wrong,  in  all  his  contests,  and  the  lord  should 
protect  the  vassal  in  his  holding.  The  system  grew  up  in  the 
ninth  and  tenth  centuries,  and  by  the  end  of  the  eleventh  had 
become  general  over  western  Europe,  and  in  1088  a  written 
collection  of  feudal  customs  was  made  by  Beam. 

While  the  system  seems  to  have  had  its  inception  in  grants 
of  crown  lands  to  followers  oif  the  king,  the  turbulence  of  the 
times  made  it  desirable  for  the  holders  of  allodial  or  frank 
tenure  lands  to  gain  the  protection  of  the  neighboring  lord. 
It  therefore  became  common  for  the  holders  of  such  estates 
to  surrender  them  to  the  king  or  neighboring  great  lord  and 
take  them  back  as  feudal  tenures.  Not  only  did  laymen  gen- 
erally adopt  this  course,  but  monastic  and  church  lands  were 
similarly  placed  under  the  military  protection  of  a  powerful 
neighbor.  The  titles  and  ranks  of  European  nobility  de- 
veloped from  this  system.  In  place  of  the  ancient  appointees 
of  the  Emperors,  who  were  assigned  to  duties  in  a  particular 
district  as  political  representatives  of  imperial  power,  there 
was  established  a  fixed  connection  between  the  land  and  the 
local  lord,  which  the  king  could  not  sever.  Under  the  Roman, 
Gothic  and  Frankish  emperors,  to  the  time  of  Charlemagne, 
there  was  no  necessary  connection  of  political  power  with 
title  to  land.  Under  the  feudal  system  title  to  land  was  the 
basis  of  all  political  power.  From  villein  to  king  the  station, 
rank  and  power  of  each  was  determined  by  the  relation  he 
sustained  to  land.  Slavery  disappeared,  and  serfdom  and 
villeinage  took  its  place.  Men  were  no  longer  bought  and 
sold,  but  the  villein  was  completely  at  the  mercy  of  the  owner 
of  the  soil  to  which  he  was  attached.  From  the  permanence 
of  the  relation  of  the  lord  to  the  soil  arose  a  barrier  against 
the  arbitrary  power  of  the  king.  The  great  vassal  could  not 
be  displaced  or  denied  his  local  authority  and  importance.  Be- 
hind him  stood  the  strength  in  arms  of  his  retainers.  The 
spirit  of  the  times,  concurring  with  the  genius  of  ifeudalism, 
gave  to  the  great  landholders  an  importance  and  permanence 
of  power,  which  ripened  into  that  proud  titled  aristocracy, 


MEDIAEVAL  EUROPE  371 

that  still  exhibits  such  pretensions  of  superiority.  After  the 
noble  orders  had  become  fairly  established  by  transmission  of 
estates  and  power  from  one  generation  to  another,  and  an 
idea  of  distinctions  of  blood  and  family  had  taken  firm  root, 
kings  assumed  the  power  of  conferring  rank  on  their  favo- 
rites, independent  of  territorial  possessions.  Churchmen  did 
not  escape  the  all  pervading  distinctions,  which  rated  the  idle 
nobility  so  ifar  above  the  toiling  or  trading  community.  Pre- 
lates and  Abbots  ranked  as  feudal  nobles,  and  swore  fealty  for 
their  lands,  over  which  they  exercised  the  same  power  and 
jurisdiction  as  the  lay  nobles.  While  the  lands  of  churches 
and  monasteries  were  not  generally  military  tenures,  it  was 
i]ot  uncommon  for  them  to  furnish  their  quotas  to  take  part 
in  the  sovereign's  wars. 

Among  the  early  Germanic  tribes  all  public  questions  were 
determined  in  a  general  assembly  of  freemen.  The  custom 
of  holding  general  assemblies  was  continued  by  the  Lombards 
in  Italy  and  by  the  Franks  as  late  as  882.  The  capitularies 
of  Charlemagne  purport  to  have  been  ordained  by  the  king 
with  general  consent.  Thus  the  law-making  power  was  re- 
garded as  still  residing  in  the  body  of  freemen  through  the 
Merovingian  and  until  the  decadence  of  the  Carlovingian 
dynasty.  With  the  establishment  of  the  feudal  system  legis- 
lation ceased  in  France,  and  ifor  three  centuries  no  general 
laws  were  established.  The  king  conferred  as  much  as  he 
pleased  with  his  courtiers  and  took  such  advice  as  suited  him. 
The  great  nobles  in  like  manner  were  surrounded  by  their 
retainers.  To  so  low  a  state  was  the  central  authority  reduced 
that  Louis  IX  in  his  Establishments  says  that  the  king  cannot 
declare  any  new  law  in  the  territory  of  a  baron  without  his 
consent,  nor  can  the  baron  do  so  in  that  of  his  vassal.  The 
nearest  approach  to  the  exercise  of  legislative  authority  was 
the  resolutions  and  agreements  of  congresses  of  neighboring 
lords,  who  undertook  to  carry  out  an  agreed  policy  in  their 
respective  dominions.  Ecclesiastical  councils,  of  representa- 
tives of  the  churches  and  religious  orders,  partook  more  of 
the  character  of  legislative  bodies,  and  were  more  representa- 
tive  in  composition   than   any   congress    of   nobles.      Their 


2^72  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ordinances  were  of  course  wanting  in  the  sanction  of  civil 
legislative  power,  but  the  church  had  its  own  system  of  en- 
forcing obedience  to  its  behests  by  working  on  the  credulity 
and  superstition  orf  an  ignorant  laity.  During  the  times  of 
which  we  are  now  speaking  there  was  no  general  system  of 
taxation.  The  king  and  nobility  depended  on  their  estates  and 
perquisities  of /feudal  tenures  to  maintain  their  establishments. 
As  the  vassal  furnished  his  own  equipment  and  paid  his  own 
expenses  in  the  wars,  there  was  no  expense  connected  with  the 
military  establishment. 

The  feudal  system  was  not  adapted  to  urban  conditions, 
commerce  or  industrial  pursuits.  The  feudal  lord  was  a  rob- 
ber and  a  tyrant,  who  fortified  his  castle  and  encased  himself 
in  armor,  that  he  might  maintain  his  advantage  over  the 
weak  and  defenseless.  In  the  cities,  especially  of  Italy,  the 
spirit  of  republicanism  still  survived,  though  often  supplanted 
by  despotic  rule  of  one  kind  or  another.  Venice  from  its  sea- 
protected  islands  struggled  into  existence  first  with  twelve 
tribunes,  elected  annually,  to  guide  the  affairs  of  state.  In 
697  they  elected  a  chief  magistrate,  called  the  Doge,  who  was 
general  and  judge  with  powers  not  definitely  limited,  but  who 
acted  in  important  matters  with  the  concurrence  of  a  general 
assembly.  He  was  sometimes  permitted  to  associate  his  son 
with  him.  In  1032  limitations  were  placed  on  his  power. 
He  was  prohibited  from  associating  his  son  in  the  government, 
and  required  to  act  with  the  consent  of  two  counselors,  and 
to  counsel  with  the  principal  citizens  on  important  occasions. 
In  1 1 72  a  radical  change  was  effected,  and  a  great  council  of 
480  citizens  was  established.  This  council  appointed  the  doge 
and  other  important  officers.  At  first  the  members  of  this 
body  were  selected  by  tribunes  chosen  by  the  people,  but  in 
course  of  time  they  assumed  the  power  of  confirming  or  re- 
jecting their  own  successors,  and  ultimately  membership  be- 
came hereditary.  In  11 79  the  exercise  of  criminal  jurisdiction 
was  given  to  a  council  of  forty  members,  chosen  annually. 
The  general  care  of  the  state  was  given  in  charge  to  sixty 
councilors,  over  whom  the  doge  presided.  In  the  fourteenth 
centurv  this  council  was  doubled  in  numbers.    The  senate  was 


MEDIAEVAL  EUROPE  373 

annually  renewed  by  the  great  council.  From  this  body  six 
members  were  selected,  who,  acting  with  the  doge  as  an  execu- 
tive board,  treated  with  foreign  states,  convoked  councils  and 
performed  administrative  duties.  On  his  election  the  doge  was 
required  to  take  an  oath  to  observe  many  restrictions  on  his 
power.  The  method  df  electing  a  doge  was  an  exceedingly 
complicated  combination  of  choice  by  lot  and  by  ballot  through 
the  medium  of  successive  sets  of  electors.  In  1296  the  great 
council  was  closed,  and  thereafter  all  but  the  families  then 
members  of  it  were  excluded.  In  13 10  the  famous  council  of 
ten  was  created,  who,  in  concert  with  the  doge  and  his  six 
counselors,  became  the  controlling  force  in  the  state.  Under 
this  system  the  government  was  vigorously,  but  tyrannically, 
conducted.  The  power,  wealth,  commerce  and  influence  of 
Venice  during  the  darkest  period  of  European  history  bear 
witness  to  the  superior  vitality  of  an  organization  which  car- 
ries to  its  head  a  constant  impulse  from  the  whole  people,  or 
a  large  and  representative  portion,  of  them.  No  other  Euro- 
pean state  endured  so  long,  or  so  completely  preserved  its 
integrity  during  those  years  of  darkness.  The  urDfailing  ten- 
dency, however,  for  those  on  whom  power  is  conferred  to 
extend  it,  is  well  illustrated  by  its  history,  as  also  is  the  decay 
which  always  attends  a  rigid  stratification  of  society  and  the 
rule  of  an  hereditary  aristocracy,  which  lives  without  work 
and  despises  and  despoils  an  ignorant  and  oppressed  prole- 
tariat. The  vices  of  the  Venetian  nobility  were  the  vices 
which  tyrants  exhibit  everywhere. 

At  Rome  the  idea  that  the  people  were  the  source  of  all 
political  power  never  became  wholly  extinct.  The  spirit  of  the 
church,  if  not  of  the  Popes,  was  distinctly  republican.  The 
early  bishops  and  their  successors,  the  Popes,  were  elected, 
and  the  idea  of  hereditary  power  never  obtained  in  the  church. 
The  celibacy  of  the  clergy  effectually  prevented  it.  True 
there  were  times  of  gross  corruption  in  the  elections,  times 
when  the  papal  chair  was  filled  by  fraud,  by  bribery  and  by 
violence.  These  evils  are  not  strangers  to  any  form  oif  gov- 
ernment or  system  of  social  or  religious  organization.  They 
are  manifestations  of  human  weakness  and  vice.     Above  the 


374  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

church  at  all  times  shone  the  pure  light  of  the  teachings  of 
Christ,  enjoining  universal  brotherhood  and  love  and  de- 
nouncing every  form  of  oppression  and  wrong  doing.  No 
system  of  tyranny  could  justify  itself  by  any  recorded  word 
of  His.  He  never  attempted  to  order  or  advise  any  form  or 
system  of  human  government.  "Be  not  ye  called  Rabbi,  for 
one  is  your  master,  even  Christ,  and  all  ye  are  brethern.  And 
call  no  man  your  father  upon  the  earth,  for  one  is  your  Father 
which  is  in  heaven.  Neither  be  ye  called  masters,  for  one  is 
your  master,  even  Christ.  But  he  that  is  greatest  among  you 
shall  be  your  servant,  and  whosoever  shall  exalt  himself  shall 
be  abased,  and  he  that  shall  humble  himself  shall  be  exalted." 
Absolute  equality  and  unselfishness  among  mortals  is  the 
spirit  of  all  his  teachings.  The  lofty  ideal  of  voluntary 
obedience  to  the  moral  law  as  the  ordinance  of  God,  the  sole 
ruler  of  all,  was  not  sullied  by  any  attempt  at  creating  a  gov- 
ernment to  be  administered  by  men  and  subject  to  all  human 
imperfections.  Nor  did  he  attempt  to  formulate  rules  of 
conduct  to  cover  each  specific  case,  and  much  less  to  prescribe 
rules  for  the  government  of  property  rights.  With  the  single 
exception  of  his  teachings  with  reference  to  (family  relations 
and  the  sanctity  and  indissolubility  of  the  matrimonial  bond, 
he  declared  no  rules  of  civil  conduct  which  would  be  ordi- 
narily denominated  laws.  His  teachings  were  of  the  moral 
principles  by  which  every  human  law,  regulation  and  act, 
must  be  tested.  Rewards  and  punishments  in  a  future  state 
of  being  were  promised  as  the  leading  incentives  to  righteous- 
ness in  this  life. 

The  ancient  spirit  of  Roman  republicanism  also  lingered  in 
the  great  city,  and  throughout  the  darkest  of  the  succeeding 
centuries  there  were  shadows  of  consuls,  senates,  tribunes  and 
other  ancient  officials  of  the  republic.  These  temporary  and 
relatively  insignificant  revivals  of  the  ancient  system  furnish 
little  or  nothing  novel  or  worthy  of  extended  notice  here.  In 
the  tenth  and  eleventh  centuries  the  cities  af  Lombardy,  Milan, 
Pisa,  Pavia,  Genoa,  Florence  and  other  Italian  cities,  regu- 
lated their  affairs  by  municipal  officers,  chosen  by  themselves. 
To  trace  the  history  of  each  is  impracticable  and  perhaps 


MEDIAEVAL  EUROPE  375 

would  be  unprofitable,  except  as  they  exhibit  the  superior 
vigor  and  prosperity  of  communities  which  enlist  in  public 
affairs  the  combined  energies  of  many,  over  the  petty  despot- 
isms of  the  feudal  lords.  These  cities  were  subject  to  more 
or  less  domination  by  the  emperors,  kings  and  dukes,  who 
from  time  to  time  asserted  and  maintained  authority  over 
them  with  more  or  less  strictness.  The  superior  advantages 
enjoyed  by  the  people  of  these  cities  stand  out  in  strong  con- 
trast to  the  misery  and  poverty  of  the  villeins  under  the  feudal 
barons.  Thus  Milan  in  the  middle  of  the  twelfth  century 
was  far  more  populous  than  any  of  the  capitals  of  the  great 
kingdoms.  It  was  defended  by  strong  walls  and  deep  trenches, 
within  which  an  industrious  population  dwelt  in  security,  each 
enjoying  the  ifruits  of  his  own  industry  and  foresight.  These 
little  republics  were  not  exempt  from  such  jealousies  and 
rivalries  as  prevailed  among  the  ancient  cities  of  Greece,  and 
destructive  wars  were  waged  from  time  to  time.  Against  the 
tyranny  of  Frederick  Barbarossa  the  Lombard  cities  united 
after  the  destruction  of  Milan,  and  gained  victory  and  inde- 
pendence, but  their  own  jealousies  and  animosities  in  turn 
destroyed  the  league,  which  had  protected  them  against  an 
external  foe.  A  peculiar  and  most  unfortunate  state  of  affairs 
developed  about  the  year  1200  from  the  division  of  the  dif- 
ferent cities,  and  of  the  citizens  of  each  city,  between  the 
factions  of  the  Guelphs  and  Ghebelins.  As  no  well  defined 
matter  of  principle  or  even  of  policy  or  interest  divided  these 
factions,  but  merely  claims  of  rival  princely  houses,  malice 
and  prejudice  held  full  sway,  and  no  ground  for  hostility  ex- 
isted which  reason  or  mutual  concessions  could  remove,  city 
was  arrayed  against  city  in  malignant  strife,  and  in  each  city 
faction  warred  with  faction  the  more  bitterly  because  without 
justifiable  object  or  excuse.  Notwithstanding  the  rivalries  and 
wars  of  these  petty  republics,  their  wealth  and  prosperity, 
their  public  works  and  private  establishments,  present  in  strong 
contrast  the  difference  between  a  free  republican  city  and  rural 
despotism.  The  city  governments  were  generally  modeled 
largely  after  that  of  ancient  Rome. 

While  Frederick  I  maintained  his  rule  over  the  Lombard 


376  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

cities,  he  placed  over  each  a  chief  officer,  called  a  podesta,  in 
place  of  the  elective  consuls.  A'fter  his  expulsion  the  cities 
quite  generally  adopted  the  plan  of  electing  a  podesta  from 
among  the  citizens  of  a  neighboring  city,  whose  functions, 
though  varying  in  different  cities  and  at  different  times,  were 
mainly  judicial.  He  was  forbidden  to  marry  in  the  city  or 
have  intimate  relations  with  any  of  the  citizens.  The  purpose 
of  this  was  to  have  a  judge  who  was  free  from  bias  or  fac- 
tional prejudice. 

The  feudal  system  was  not  adapted  to  urban  life  or  com- 
mercial pursuits,  and  the  organization  of  society  in  the  towns 
never  conformed  to  it.  Not  only  in  Italy,  but  in  France  and 
Germany,  there  was  at  all  times  a  spirit  of  independence  and 
an  assertion  of  the  right  to  local  government  in  opposition  to 
the  tyranny  of  feudalism.  Along  the  Rhine,  as  well  as  in 
other  parts  of  both  countries,  the  feudal  barons  in  their  forti- 
fied strongholds  became  robber  chiefs.  The  people  gathered 
in  the  towns  formed  trades  guilds,  chose  councils,  and  by  of- 
fering an  asylum  to  all  who  chose  to  jom  them,  grew  in 
numbers  and  in  power. 

On  the  deposition  of  Charles  the  Fat  in  888  the  Frankish 
empire  was  divided,  and  the  separate  existence  of  the  German 
empire  under  Arnulf  commenced.  In  accordance  with  an- 
cient customs  election  was  the  only  title  to  chief  power.  Just 
how  or  by  what  classes  of  people  the  choice  was  made  is  not 
made  very  clear,  but  it  seems  to  have  been  in  a  general  as- 
sembly oif  the  five  nations  of  Germany.  The  actual  choice  of 
succeeding  emperors  appears  to  have  been  made  by  the  no- 
bility, ratified  perhaps  to  some  extent  by  general  assemblies 
of  the  people,  but  with  the  growth  of  the  feudal  system  the 
actual  power  of  the  emperor  became  so  slight  that  it  was 
scarcely  sought  after.  At  the  election  of  Lothaire  in  1124 
there  was  what  is  termed  a  pretaxation,  or  selection  of  a 
candidate  by  ten  persons,  in  whose  choice  the  princes  agreed 
to  acquiesce.  Later  the  electoral  college  was  composed  of 
seven  members,  the  archbishops  of  Mentz,  Treves  and  Co- 
logne, the  duke  of  Saxony,  the  count  Palatine  of  the  Rhine, 
the  king  of  Bohemia,  and  the  margrave  of  Brandenburg.    The 


MEDIAEVAL  EUROPE  m 

powers  of  the  emperor  are  not  easily  stated,  nor  were  they 
ever  clearly  defined,  but  rather  dependent  on  the  character  of 
the  person  filling  the  office  and  the  temper  of  the  people  at 
the  time.  His  claim  of  sovereignty  over  Italy  was  given 
more  or  less  recognition,  but  never  amounted  to  an  effectual 
direction  of  affairs.  The  spirit  of  the  feudal  lords  was  such 
throughout  Germany,  as  well  as  all  parts  of  Europe  where 
feudalism  prevailed,  as  to  deny  the  right  of  any  superior  to 
interfere  with  local  affairs  in  their  dominions.  The  feudal 
baron  was  the  political  entity.  He  waged  war  when,  with 
whom,  and  as  he  pleased.  That  now  clearly  recognized  dis- 
tinctive function  of  sovereignty,  the  right  to  form  alliances 
and  make  war  or  peace,  was  then  freely  exercised  by  each 
feudal  landlord.  The  Emperor  of  Germany,  the  French  king 
and  other  potentates,  were  powerless  to  prevent  the  private 
wars  among  their  vassals,  nor  were  they  able  to  command 
their  support  in  contests  with  outside  ifoes.  For  three  cen- 
turies after  the  breaking  up  of  the  Empire  of  Charlemagne 
the  history  of  Europe  is  not  to  be  traced  as  that  of  organized 
states  with  settled  governments  and  laws.  The  first  and  far 
most  prominent  political  fact  was  the  growing  power  of  the 
feudal  lords.  That  power  was  exercised  singly  by  each  in 
accordance  with  his  own  sense  of  honor.  Pride,  arrogance, 
disregard  of  human  life,  detestation  of  labor,  of  learning  and 
o/f  all  useful  callings,  were  the  prevailing  sentiments  of  the 
nobility.  It  is  indeed  difficult  to  detect  anything  good  in  the 
system.  It  was  as  if  the  free  Germanic  tribes  had  been  con- 
verted into  petty  despotisms,  in  which  the  freeman  had  be- 
come s^rfs  and  the  chief  a  tyrant.  The  cities  and  towns  of 
Germany  and  France  were  of  little  political  imjXDrtance  in 
those  times,  as  compared  with  the  great  landlords  and  their 
vassals,  and  most  of  them  found  it  necessary  to  place  them- 
selves under  the  protection,  which  often  meant  at  the  mercy, 
of  a  neighboring  chief.  In  Italy  alone  the  feudal  barons  were 
placed  under  some  restraints,  and  in  many  instances  required 
to  dwell  within  the  town  and  submit  to  its  regulations.  The 
church  and  the  monastic  establishments  preserved  whatever 
remained  of  learning,  and  alone  afforded  a  bond  of  union 


378  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

throughout  the  warring  fragments  of  the  ancient  empire. 
Within  the  monastery  labor,  study,  equahty  and  self-denial 
were  still  the  precepts,  if  not  generally  the  practice.  The 
barbarity  of  the  age,  however,  had  its  influence  on  these  insti- 
tutions. Superstitions  derived  from  ancient  and  impure  wor- 
ships were  imported  and  made  part  of  the  stock  in  trade  of 
the  clergy.  The  pure  morality  of  Christ  was  too  lofty  for 
practical  use  in  an  age  so  degraded,  and  saints  and  images, 
sticks  of  wood  labeled  pieces  of  the  true  cross,  bones  of  saints 
and  martyrs,  and  other  objects  to  which  pious  fraud  could 
give  fictitious  virtue,  were  made  objects  of  worship  and  held 
forth  as  possessing  miraculous  powers.  The  vice  of  avarice 
also  seized  fast  hold  of  the  church  of  him  who  so  vigorously 
denounced  it,  and  absolution  for  the  vilest  crimes  was  granted 
by  the  church  to  pious  criminals  who  would  pay  sufficiently 
for  it.  Superstition  always  has  a  firm  hold  on  him  who  feels 
that  his  conduct  is  vicious,  and  the  abbots  and  clergy  of  that 
age  found  no  difficulty  in  profiting  largely  from  the  super- 
stitious fears  of  the  multitude.  Not  only  were  the  holdings 
of  religious  establishments  so  increased  as  to  cover  a  large 
part  of  the  entire  country,  but  the  power  and  influence  of  the 
church  became  predominant.  This  would  have  been  of  in- 
calculable benefit  if  pure  Christian  morality  could  have  been 
promoted,  but  with  increase  of  wealth  came  corruption  of  the 
church,  and  in  many  places  monasteries  and  clergymen's 
houses  became  seats  of  vice  and  immorality. 

Theoretically  the  monastery  was  a  refuge  for  the  man  of 
peace,  who  would  withdraw  from  the  conflicts  of  a  bloody 
age,  but  the  spirit  of  war  could  not  be  wholly  excluded,  and 
abbots  often  found  it  necessary,  or  deemed  it  expedient,  to 
arm  their  followers  and  take  part  in  the  local  wars.  Nor  were 
the  church  properties  always  respected  by  the  barons.  Pre- 
texts were  invented  by  the  powerful  to  seize  the  lands  held 
to  pious  uses  by  force,  and  there  was  no  superior  authority 
with  sufficient  strength  to  insure  redress.  Corrupt  as  the 
religious  institutions  undoubtedly  were,  they  still  rendered 
succeeding  ages  an  inestimable  service.  Of  all  the  treasures 
which  one  age  can  pass  down  to  another,  that  of  knowledge 


MEDIAEVAL  EUROPE  379 

and  wisdom,  gained  from  experience  and  the  inspirations  of 
religious  teachers,  poets  and  philosophers,  is  of  the  most 
inestimable  value.  To  the  church  and  the  monasteries  we  owe, 
not  merely  the  preservation  and  transmission  to  our  times  of 
the  sacred  writings,  but  also,  the  perishable  manuscripts  in 
which  were  written  the  learning  of  the  heathen  world,  which 
the  art  of  printing  has  now  made  accessible  to  the  educated 
people  of  all  nations.  Through  them,  perhaps  more  than  any 
other  medium,  the  light  of  the  Roman  jurisprudence  has  been 
rekindled  to  become  again  the  basis  of  judicial  action  through- 
out Europe. 

The  political  importance  o^f  the  barons  in  France,  where  the 
feudal  system  attained  its  most  complete  development,  is  ex- 
hibited by  the  following  functions  and  exemptions  which 
they  asserted,  i.  Power  to  coin  money.  2.  To  wage  private 
war.  3.  Exemption  from  all  taxation  and  tribute  except  the 
feudal  aids.  4.  Freedom  from  legislative  control.  5.  The 
exclusive  exercise  of  judicial  functions  in  their  dominions. 
A  system  recognizing  these  claims  necessarily  left  the  central 
authority  a  mere  shadow.  The  only  semblance  of  general 
legislative  authority  seems  to  have  been  that  exercised  by 
general  councils  of  the  church.  With  all  its  tyranny  the 
feudal  system  contained  some  germs  of  social  order  and  civil 
liberty.  It  recognized  a  definite  obligation  resting  on  the  lord 
to  protect  the  vassal,  and  was  based  on  the  idea,  if  not  the 
substance,  of  mutual  support  and  advantage.  The  terms  oif 
the  relation  were  fixed  by  general  understanding,  if  not  always 
faithfully  observed.  Within  his  demesne  justice  was  ad- 
ministered publicly  by  the  lord  in  accordance  with  the  customs 
of  the  times,  and  all  mere  arbitrary  power  was  theoretically 
denied,  though  actually  exercised.  The  system  flourished  for 
about  three  centuries  and  begun  to  wane.  The  forces  which 
undermined  it  proceeded  from  two  directions,  the  sovereigns 
and  the  towns.  The  king  could  not  maintain  his  wars  suc- 
cessfully with  the  mere  temporary  support  of  his  vassals. 
Longer  terms  of  service  and  money  for  supplies  were  indis- 
pensable to  the  reduction  of  a  fortified  town.  Long  service 
could  only  be  gained  with  pay.     Pay  could  only  be  afforded 


38o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

by  a  general  system  of  contribution  or  taxation.  National 
spirit,  stimulated  by  the  crusades,  and  distant  wars,  inclined 
public  sentiment  toward  strengthening  the  hands  of  the 
kings. 

At  the  other  end  we  find  the  towns,  seats  of  industry,  im- 
bued with  a  more  democratic  spirit  and  inclined  to  resist  the 
tyranny  of  the  barons.  Productive  industry  and  peaceful  in- 
clinations tended  to  a  greater  increase  of  numbers  than  that 
among  the  retainers  of  those  whose  only  calling  was  war. 
Not  only  did  the  numbers  of  the  townsmen  increase  more 
rapidly  through  natural  multiplication,  but  they  steadily  gained 
at  the  expense  of  the  nobles  through  the  settlement  of  villeins 
and  small  feudatories  in  the  towns,  where  they  were  gener- 
ally welcomed  and  accorded  burghers  privileges.  The  feudal 
system,  operating  throughout  the  same  great  field  as  the  mon- 
astic and  church  system,  reduced  the  power  of  the  kings  to 
a  mere  shadow  of  the  absolutism  of  the  ancient  emperors. 
The  popes  persistently  advanced  their  claims  of  spiritual  super- 
vision, and  in  the  exercise  of  religious  discipline  exerted  in 
fact  a  powerful  influence,  and  often  an  arbitrary  supervision, 
over  secular  affairs.  The  papal  power  was  rapidly  extended  by 
encouraging  appeals  to  Rome  in  all  disputes  arising  in  the 
church,  and  then  of  controversies  between  contending  princes. 
Thus  Lothair  was  taken  to  task  for  divorcing  his  wife  and 
excommunicated  by  Pope  Nicholas  I.  Excommunication  in 
some  states  of  society  might  amount  to  little  more  than  an 
expression  of  displeasure,  but  in  an  age  of  superstition  and 
of  general  submission  to  the  church  it  was  a  heavy  penalty 
depriving  the  offender  of  all  participation  in  the  ministrations 
of  the  church  and  of  all  communion  with  its  members.  It 
in  effect  singled  him  out  as  an  object  of  scorn  and  detestation 
to  be  shunned  and  condemned  by  all  mankind.  The  proud 
Lothair  at  first  treated  the  action  af  the  Pope  with  contempt, 
but  was  forced  to  humbly  sue  at  the  feet  of  Adrian  II  for 
pardon  and  absolution.  The  law  also  added  to  the  force  of 
the  papal  authority  a  disqualification  of  the  excommunicated 
person  to  testify  as  a  witness  in  a  court  of  justice,  or  even  to 
bring  an  action.     A  yet  more  severe  weapon  wielded  by  the 


MEDIAEVAL  EUROPE  381 

head  of  the  church  was  the  interdict,  by  which  not  only  the 
offender,  but  all  his  subjects,  were  deprived  of  religious  privi- 
leges. The  churches  throughout  his  dominions  were  closed, 
the  bells  silenced  and  the  dead  left  unburied.  No  rites  but 
those  of  baptism  and  extreme  unction  could  be  performed. 
The  penalty  fell  on  the  unoffending  subjects  with  the  same 
severity  as  on  the  guilty  ruler.  Though  the  power  off  the 
church  was  sometimes  successfully  resisted,  and  though  kings 
sometimes  in  turn  ruled  the  weaker  popes  and  used  them  as 
instruments  for  their  own  aggrandisement,  in  an  age  when 
all  learning  was  the  property  of  the  church  and  superstitious 
veneration  of  pope  and  clergy  was  so  general,  the  interdict 
was  an  effectual  weapon  for  the  execution  of  papal  commands. 
From  the  anarchistic  conditions  which  prevailed  when 
feudalism  was  at  its  height  modern  European  society  has 
been  envolved.  The  political  map  of  that  continent  has  been 
subject  to  many  and  sweeping  changes,  and  still  shows  many 
small  states,  constantly  armed  and  expectant  of  war.  No 
firm  bond  yet  binds  the  people  of  different  nations  to  each 
other.  Narrowness,  distrust  and  inherited  hatreds,  still  bar 
the  way  to  sensible  combination  and  the  acceptance  by  rival 
states  of  mutual  good-will  and  good  deeds.  Yet  from  the 
disorganized  and  chaotic  mass  of  the  dark  ages  states  with 
larger  territory,  more  varied  popular  elements,  and  better 
principles  have  grown  up.  These  we  must  examine  separately 
and  in  detail. 

Authorities 

Henry  Hallam :    History  of  Europe  during  the  Middle  Ages. 

H.  M.  Gwatkin:    The  Cambridge  Mediaeval  History. 

Michaud's  History  of  the  Crusades. 

Oman:     The  Dark  Ages. 

Continental  Legal  History  Series,  vol.  I. 


CHAPTER  XVI 


Russia 


Our  earliest  introduction  to  the  inhabitants  o/f  that  vast 
territory  now  designated  as  Russia  comes  through  the  Greeks, 
and  exhibits  many  tribes  with  varied  characteristics.  The 
name  Scythians  was  appHed  quite  generally  to  the  nomads  of 
the  great  plains,  and  also  to  those  who  tilled  the  soil  in  the 
rich  valley  of  the  Dnieper.  Many  early  tribes  are  mentioned 
by  Herodotus  and  other  ancient  writers,  the  relationship  of 
which  to  each  other  or  to  modern  people  it  is  not  our  pur- 
pose to  trace.  From  the  earliest  times  central  and  north- 
western Asia  has  been  a  breeding  ground,  from  which  has 
issued  barbaric  hordes  that  have  pushed  their  way  in  all  di- 
rections and  especially  across  the  flat  grassy  Russian  plains 
into  Europe.  Their  movements  have  been  in  main  migrations 
of  tribes  with  all  their  families,  cattle  and  belongings,  seeking 
to  escape  enemies  or  searching  for  pasturage  or  pillage. 
Among  the  characteristics  of  most  of  these  people,  when  first 
mentioned  in  history,  are  bravery,  cruelty,  superstition  and 
ignorance.  They  scalped  prisoners,  drank  the  blood  of  ene- 
mies killed  in  battle,  sacrificed  slaves  and  horses  at  the  funer- 
als of  dead  kings,  and  had  other  horrible  customs,  yet  it 
would  hardly  be  safe  to  give  this  as  a  general  statement  of  the 
manners  which  prevailed  for  any  long  period  df  time.  It  can 
be  said  however  that  cruelty  and  indiscriminate  slaughter  of 
conquered  enemies  has  generally  attended  the  conquests  made 
by  the  swarms  which  from  time  to  time  have  issued  from  this 
breeding  ground.  The  peculiarities  of  southern  Russia  have 
rendered  it  possible  for  Asiatic  hordes  to  pass  quickly  with 
horses,  cattle  and  all  their  households  from  their  Asiatic  seats 
into  the  heart  of  Europe.  Level  plains  with  ample  pasturage, 
unobstructed  by  mountains  or  great  forests,  have  afforded  a 
broad  highway,  open  to  all  who  might  choose  to  travel  it. 

382 


RUSSIA  383 

Pastoral  tribes,  moving  with  herds  and  tents,  might  be  equally 
at  home  anywhere  from  the  mountain  slopes  of  central  Asia 
to  the  Dnieper.  The  prevalence  of  periodical  droughts  and 
resulting  failure  of  vegetation  have  compelled  frequent  mi- 
grations, and  the  necessities  af  their  situations  have  driven 
tribe  after  tribe  along  this  highway.  It  was  the  people  dwell- 
ing in,  or  who  passed  through  this  grass  land,  that  came  in 
contact  with  Greeks  and  Romans  and  successively  invaded 
western  Europe.  The  dwellers  in  the  wooded  country  lying  to 
the  north  never  come  in  contact  with  either  ancient  Greeks 
or  Romans. 

The  foundations  of  the  government  which  has  since  ex- 
tended from  the  Baltic  to  the  Pacific  and  from  the  Arctic  be- 
yond the  Black  Sea,  were  laid  in  the  forest  regions  from  which 
the  great  rivers  flowing  into  the  Baltic,  Black  and  Caspian 
seas  have  their  sources.  The  dominant  race  of  Russia  is 
the  Slav,  classed  as  Aryans  and  allied  to  the  Germans.  The 
next  most  important  elements  are  Finns  and  Tartars.  Inter- 
mixture has  produced  a  composite  of  which  the  prevailing 
characteristics  are  Slavic. 

The  Slavs  as. first  made  known  to  us  were  at  a  very  low 
stage  of  social  development.  The  family  was  the  political  and 
social  unit  with  the  father  as  its  patriarchal  head.  Polygamy 
was  allowed,  and  wives  were  captured,  with  or  without  their 
consent,  as  a  part  of  the  marriage  ceremony.  The  mir  was 
an  expansion  of  the  family  and  under  the  direction  oif  a 
council  of  elders  called  vefcJie.  In  its  deliberations  there  was 
little  of  order,  and  a  decision  required  the  concurrence  of  all. 
The  idea  of  the  right  of  a  majority  to  rule  did  not  obtain,  but 
the  majority  were  forced  to  make  such  concessions  to  the 
minority  as  would  induce  them  to  concur,  or  to  use  some  other 
effectual  means  of  enforcing  acquiescence.  The  village  lands 
were  owned  in  common,  except  the  dvor  or  inclosure  im- 
mediately about  the  house.  A  group  of  mirs  was  called  a 
volost  or  pagost  and  was  governed  by  a  council  of  elders  of 
the  jjiirs.  A  chief  of  the  volost  chosen  by  the  elders  was  a 
leader  in  war  but  with  little  or  no  power  in  peace.  Any.  'fur- 
ther union  of  different  volosts  was  temporary,  and  no  estab- 


384  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

lished  authority  over  tribe  or  race  was  recognized.  They 
tilled  the  soil,  used  coined  money  of  other  nations,  and  had 
considerable  commerce.  They  were  workers  of  iron  and 
made  swords  for  export. 

The  foundation  of  the  Russian  state  starts  from  the  ac- 
cepted date  of  862,  when  the  Variagi  came  to  rule  over  the 
Slavs  of  Novgorod  and  vicinity,  by  invitation  of  the  people 
it  is  said.  Rurik,  his  two  brothers  and  their  military  follow- 
ing came  to  establish  order  and  defend  the  Slavs.  Rurik  first 
settled  at  Lake  Ladoga,  and  at  Novgorod  after  the  death  of 
his  brothers.  Two  other  Variagi  went  down  to  Kief  and 
became  leaders  off  the  Poliane.  After  the  death  of  Rurik  his 
brother  Oleg  subdued  Kief,  extended  his  dominion  over  most 
of  the  Russian  Slavs  and  in  907  attacked  Constantinople  and 
imposed  tribute  on  it.  Igor  son  of  Rurik  succeeded  Oleg, 
and  on  his  death  his  widow  Olga  became  regent  during  the 
minority  of  her  son  Sviatoslaf.  She  began  her  reign  with 
bai^barous  massacres  of  the  Drevliane,  by  some  of  whom  her 
husband  had  been  assassinated,  and  was  afterward  converted 
to  Christianity,  but  her  son  refused  to  follow  her  example  and 
but  few  of  her  subjects  accepted  her  faith.  On  the  death  of 
Sviatoslaf  the  empire  was  divided  among  his  three  sons,  who 
ruled  respectively  at  Kielf,  Novgorod  and  over  the  Drevliane. 
Civil  wars  followed,  resulting  in  the  death  of  two  of  the 
brothers  and  the  consolidation  of  the  whole  under  Vladimir. 
He  was  a  cruel,  sensual  despot,  who  took  five  wives  and  kept 
concubines  by  the  hundreds.  He  became  dissatisfied  with  the 
old  religion  and  made  war  on  Constantinople  to  conquer  the 
Greek  Christianity.  As  terms  of  peace  he  demanded  the 
daughter  of  the  Greek  emperor  in  marriage  and  accepted  bap- 
tism. He  then  proceeded  in  a  truly  autocratic  manner  to 
throw  down  the  ancient  idols  and  march  the  people  into  the 
rivers  to  be  baptized.  His  conversion  is  said  to  have  been  fol- 
lowed by  a  radical  reformation  of  character,  by  the  founding 
of  schools  and  many  other  works  for  the  good  of  the  people. 
Vladimir  partitioned  his  dominions  among  his  sons  and  even 
gave  a  portion  to  a  nephew.  They,  as  usual,  fought  among 
themselves,   and  laroslaf  became  master  of  all.     His  reign 


RUSSIA  385 

from  1 01 5  to  1054  was  a  brilliant  one  and  placed  Russia 
among  the  leading  states  of  Europe.  He  promulgated  the 
first  code  of  Russian  laws.  It  recognized  the  avengers  of 
blood  and  fixed  the  amount  of  money  to  be  paid  for  crime; 
allowed  judicial  duels,  trial  by  ordeal  of  red  hot  irons  and 
boiling  water,  by  oath  with  compurgators,  and  also  provided 
for  trial  by  a  judge  and  jury  of  twelve  men.  Punishment  by 
death,  whipping  or  imprisonment  was  unknown.  The  rule  of 
the  Variagi  was  not  of  autocrats  with  firmly  established 
authority,  exercised  through  a  system  of  subordinate  officials. 
The  prince  occupied  relations  similar  to  the  Norse  and  Frank 
leaders  with  their  bands  of  military  companions  and  followers 
called  the  drujina.  They  were  his  council  oif  state  and  his 
guard.  From  them  he  chose  governors  of  towns  and  con- 
stituted courts  of  justice.  They  ate  at  his  table  and  exercised 
a  powerful  influence  on  his  policy.  Sviatoslaf  answered  his 
mother  Olga's  exhortations  to  become  a  Christian  by  saying 
that  his  drujina  would  mock  him.  He  owed  his  strength 
to  them  and  in  order  to  retain  it  was  forced  to  consult  their 
wishes.  They  were  free  to  transfer  their  allegiance  to  another 
when  they  chose.  Prince  and  drujina  were  engaged  in  a  com- 
mon enterprise  and  lived  from  the  tribute  they  extorted.  This 
was  fixed  arbitrarily,  and  Igor  lost  his  life  by  attempting  to 
force  further  tribute  from  the  Drevliane,  after  he  had  fleeced 
them  once.  The  drujina  was  divided  into  three  classes,  of 
whom  the  boyars  were  the  highest.  What  commerce  there 
was  was  carried  on  by  the  prince  and  his  armed  warriors. 
The  mass  of  the  population  were  peasants — mushiks,  and 
slaves.  The  leading  city  in  the  time  oif  Rurik  and  for  a 
considerable  period  thereafter  was  Novgorod,  which  is  said, 
to  have  then  had  100,000  inhabitants.  It  was  a  republic  with 
ruling  power  in  the  assemWy  of  citizens,  the  vetche,  which  was 
convoked  by  ringing  the  bell.  They  dictated  terms  to  princes 
and  received  ^such  rulers  as  they  pleased  and  on  their  own  con- 
ditions, laroslaf  confirmed  and  defined  the  privileges  of 
Novgorod,  which  subsequent  princes  were  required  to  take  an 
oath  to  observe.  The  revenues  he  might  exact  were  strictly 
limited,  as  also  were  his  judicial  and  political  functions.     He 


386  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

could   not   execute   justice   without   the   concurrence   of   the 
posadnik,  nor  reverse  a  judgment  nor  take  a  suit  away  from 
the  city.     In  conflicts  between  citizens  and  the  prince's  men  a 
mixed  tribunal  decided.     He  could  impose  no  garrison  nor 
colony  on  them.     The  chief  officer  of  the  city  was  the  posad- 
nik.    He  was  charged  with  the  defense  of  civic  rights,  and 
shared  with  the  prince  the  judicial  powers  and  the  apportion- 
ment of  taxes.     He  governed  the  city,  commanded  the  army 
and  directed  its  diplomacy.     The  next  in  authority  was  the 
teiisatski,  who  was  military  chief  and  entrusted  with  the  de- 
fense df  the  rights  of  the  people  as  a  sort  of  tribune.    Novgo- 
rod also  preserved  its  spiritual  independence  by  electing  its 
own  archbishop,  who  ranked  among  the  chief  dignitaries  of 
the  city.    The  citizens  not  only  elected  but  retained  the  power 
to  depose  him.     Novgorod  became  a  German  market,   and 
German  settlements  were  made  not  only   at   Novgorod   but 
also  at  Ladoga  and  Pskof.    Their  markets  were  protected  by 
stockades,  and  they  maintained  a  monopoly  of  the  western 
trade.     Pskof  and  Viatka  developed  later,  about  the  twelfth 
century,  as  little  republics  similarly  constituted  to  Novgorod. 
The  period  following  the  death  of  laroslaf  in  1054  till  the 
appearance  of  the  Tartars  in  1224  was  one  of  fierce  and  cruel 
wars,  due  largely  to  the  division  of  the  country  among  the 
heirs  of  deceased  princes,  aggravated  by  a  conflict  as  to  the 
rule  of  inheritance  between  the  old  Slavonic  leadership  of  the 
oldest  member  of  the   family,   by  which  brother  succeeded 
brother,  and  the  claims  of  the  sons.    From  the  dreary  accounts 
of  bloody  cruelty  and  constant  wars  no  new  lesson  can  be 
drawn.     It  has  had  its  counterpart  in  the  history  of  nearly 
every  nation  on  earth.     The  advent  of  the  Mongols  in  1224 
marks  the  beginning  of  an  important  epoch  in  Russian  history. 
The  dominion  of  Genghis  Kahn  had  already  been  extended 
over  Manchuria,  Northern  China,  central  and  western  Asia. 
Nothing  could  exceed  the  fierceness  and  barbarity  of  his  con- 
quests.    Indiscriminate  slaughter,  rapine,  destruction  of  cities 
and  property,  death,  desolation  and  ruin  everywhere,  were  the 
penalties  of  resistance,  and  submission  often  gained  no  pro- 
tection.   His  armies  were  recruited  from  all  nations,  and  with 


RUSSIA  387 

prestige  once  established  he  drew  to  his  aid  a  heterogeneous 
army,  made  up  from  all  the  nations  with  which  he  came  in 
contact.  Against  his  hordes  the  ever  jealous  and  warring 
petty  princes,  who  ruled  in  the  dismembered  states  ai  Russia, 
could  oppose  no  effectual  resistance.  The  Russians  of  that 
time  were  not  very  superior  in  their  rules  of  warfare  to  the 
Mongols.  When  the  ambassadors  of  the  latter  came  to  them 
asking  that  they  abstain  from  interference  in  their  contest 
with  the  Paluvtsin,  the  Russians  responded  by  killing  the 
ambassadors.  In  the  battle  which  followed  the  Russian  army 
was  annihilated.  This  battle  however  was  not  followed  by 
the  immediate  subjugation  of  any  large  territory.  The  Mon- 
gol hordes  returned  to  the  east,  where  they  were  occupied 
with  other  conquests.  In  1237  Oktai,  one  of  the  sons  and 
successors  of  Genghis,  sent  his  nephew  Batu  with  an  immense 
army  into  Russia.  He  quickly  overran  the  grass  country  of 
the  south  and  spread  ruin  and  desolation  everywhere.  His 
army  penetrated  the  forests  to  within  fifty  miles  of  Novgorod. 
Mangu,  a  grandson  oif  Genghis,  took  and  destroyed  Kief  and 
put  its  people  to  the  sword.  The  difficulties  of  a  hilly  timbered 
country  impeded  the  progress  of  a  horde  accustomed  to  the 
open  plains,  and  the  obstinate  defense  of  Olmutz  in  Moravia 
checked  their  advance.  The  death  of  Oktai  recalled  Batu  to 
the  east,  and  the  wave  of  conquest  had  reached  its  western 
limit.  Though  they  passed  through  Hungary  into  Germany, 
they  gained  no  permanent  foothold  beyond  Russia.  Batu 
established  his  capital  at  Sarai  on  the  lower  Volga,  where  as 
representative  of  the  great  Kahn  he  ruled  in  barbaric  splendor. 
By  the  persuasion  of  Alexander  Nevski  Novgorod  paid  tribute 
to  the  Mongols.  Russian  princes  were  required  to  appear  at 
the  capital  of  the  Golden  Horde  and  do  homage  to  its  chief. 
In  many  instances  they  were  compelled  to  appear  in  the  court 
of  the  Great  Kahn  on  the  further  side  of  Asia.  The  rule  of 
the  Mongols  was  that  of  military  chiefs,  interested  in  extort- 
ing tribute  and  extending  their  power,  but  taking  no  interest 
in  the  local  affairs  of  the  people.  They  left  those  they  spared 
with  their  social  system,  their  local  courts  and  laws  unchanged, 
and  with  possession  of  their  lands,  which  their  nomad  con- 


388  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

querors  had  no  desire  to  cultivate.  The  conquered  people 
were  required  to  pay  a  capitation-tax,  levied  on  rich  and  poor 
alike,  to  be  paid  in  money  or  furs.  The  revenue  was  col- 
lected by  farmers  supported  by  the"  agents  and  guards  of  the 
Kahn.  In  course  of  time  the  princes  of  Moscow  undertook 
the  collection  from  their  own  subjects.  The  Russians  were 
also  required  to  furnish  their  quota  of  troops.  While  the 
Russian  princes  were  allowed  to  retain  their  places,  it  was  as 
subjects  of  the  great  Kahn,  to  whose  decision  they  were  re- 
quired to  submit  their  controversies  instead  of  fighting  them 
out.  The  corruption  of  the  Kahn's  court  is  reputed  to  have 
been  extreme.  The  Mongols  were  converted  to  Mohammedan- 
ism about  1272.  After  they  ceased  to  extend  their  dominions 
by  conquest,  their  manners  solftened  and  we  hear  no  more 
of  their  extreme  ferocity.  During  the  time  of  their  ascend- 
ency the  Russians  waged  successful  war  with  the  Swedes  and 
Livonians  and  strengthened  their  position  on  the  west  and 
north.  With  the  rise  of  Poland  there  was  a  tendency  to  Rus- 
sian concentration  about  Moscow. 

In  the  reign  of  Ivan  III  the  Muscovite  autocracy  began  to 
again  consolidate  the  Russian  states.  Novgorod  had  changed 
from  a  democracy,  devoted  to  the  common  welfare,  to  an 
aristocracy  divided  into  discordant  factions.  In  1470  it  sub- 
mitted to  the  sway  of  Ivan.  By  assuming  the  role  of  judge 
between  the  warring  factions  he  took  away  from  them  their 
ancient  and  highly  prized  privilege  of  determining  all  their 
causes  at  home.  They  rebelled  and  he  subdued  them  and 
finally  abolished  the  vetche  and  posadnik,  and  in  1478  the  re- 
public oif  Novgorod  ceased  to  exist.  The  Tartar  empire  had 
broken  into  fragments,  and  Ivan  finally  threw  off  the  yoke  of 
the  Horde.  Vasili  Ivanovitch  took  away  the  liberties  of  Pskof 
as  his  father  had  those  of  Novgorod,  abolished  its  vetche, 
carried  off  its  bell,  placed  his  lieutenant  in  it  as  governor  and 
transplanted  its  principal  citizens  in  remote  parts,  as  his  father 
had  those  of  Novgorod.  Ivan  IV,  the  terrible,  extended  the 
boundaries  of  his  empire  and  at  the  same  time  hardened  the 
autocracy.  His  merciless  executions  were  numbered  by  thou- 
sands and  included  many  of  the  proudest  boyars  of  the  empire. 


RUSSIA  389 

In  1556  he  assembled  the  States  General  for  the  first  time, 
and  he  was  the  organizer  of  the  strelitz  or  National  Guard. 
The  long  and  vigorous  reigns  of  Ivan  III,  Vasili  and  Ivan 
IV,  extending  from  1462  to  1584,  witnessed  the  consolidation 
of  the  empire,  the  termination  of  the  policy  of  dividing  it  as 
an  inheritance  and  the  centralization  of  power  in  the  hands  of 
the  Czar.  The  policy  of  these  monarchs  was  mainly  directed 
toward  the  firm  establishment  of  the  power  of  the  Czar  over 
the  nobility.  The  drujina,  who  were  his  companions  in  the 
palace  in  peace  and  in  the  camp  in  war,  had  no  taste  for  ad- 
ministrative details,  and  in  the  organization  of  the  bureau- 
cratic system,  through  which  the  central  power  acts  on  the 
multitude,  it  became  necessary  to  call  in  the  more  humble  and 
more  scholarly  sons  of  merchants  and  priests.  A  great  num- 
ber of  these  bureaus,  twenty  to  thirty,  with  varying  and  ill- 
defined  functions  were  instituted.  One  had  charge  of  supply- 
ing the  table' of  the  Czar,  the  princes  of  the  blood  and  nobles 
whom  he  fed.  Others  looked  after  other  domestic  and  court 
matters.  Then  there  were  the  prikazin  af  the  palace,  of  the 
revenue,  of  secret  affairs,  petitions,  posts,  police,  buildings, 
slaves,  monasteries,  army,  embassies  and  of  the  provinces. 
The  revenues  were  derived  from  the  products  of  crown  lands, 
paid  in  kind  or  in  money,  from  a  tax  on  corn,  on  fires,  cus- 
toms, crown  taverns,  fines  and  confiscations.  Certain  branches 
of  trade  were  also  monopolized  by  the  Czar  and  used  as  a 
means  of  extorting  money  from  the  merchants. 

Three  grades  of  courts  of  justice  were  established,  that  of 
the  starosta  of  the  district,  a  magistrate  for  every  hundred 
plows,  the  voievod  in  the  chief  city  otf  each  province  and  the 
Supreme  Court  of  Moscow.  Trials  were  had  on  written  or 
oral  proofs,  a  party  being  allowed  to  testify  in  the  absence  of 
other  proof,  or  by  judicial  combat.  Debtors  were  treated  with 
the  greatest  rigor.  An  insolvent  was  liable  to  be  flogged  daily 
for  thirty  or  forty  days,  after  which,  if  no  one  would  pay  his 
debts,  he  was  sold  and  his  wife  and  children  hired  out  to 
service.  Persons  charged  with  theft,  murder  or  treason  were 
subjected  to  a  great  variety  of  tortures.  Heretics  and  sorcer- 
ers were  burned.     Counterfeiters  had  hot  metal  poured  down 


390  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

their  throats.  These  were  for  the  humble  subjects.  A  noble- 
man who  slew  a  mujik  was  only  fined  or  whipped,  and  iif  he 
killed  his  slave  there  was  no  penalty,  for  he  might  do  as  he 
pleased  with  his  chattel.  The  church  was  made  subservient 
to  the  Czar,  and  the  clergy  were  instructed  in  the  performance 
of  imposing  ceremonies,  but  knew  little  of  religion  or  morality. 

The  army  was  mostly  cavalry.  The  imperial  guard  of  about 
eight  thousand  was  made  up  of  young  courtiers.  All  the 
nobles  of  the  empire,  counted  at  about  eighty  thousand,  served 
on  horseback  and  defrayed  their  expenses  from  the  revenues 
of  their  lands.  The  levy  of  the  free  peasants  amounted  to 
about  three  hundred  thousand.  The  strelitzi,  organized  by 
Ivan  IV  and  kept  at  Moscow,  numbered  twelve  thousand. 
Many  foreigners  were  taken  into  the  service.  Soldiers  fur- 
nished their  own  rations  mainly  for  short  campaigns.  Diplo- 
matic relations  were  established  with  other  countries  of 
Europe.  The  lower  orders  of  Russia  were  made  up  of:  i, 
•chattel  slaves ;  2,  peasants  attached  to  the  lands  of  the  nobles, 
legally  free  in  person  but  bound  to  till  their  masters'  lands, 
and  3.  free  cultivators,  who  had  the  right  to  move  from  place 
to  place  and  change  masters.  The  second  class  was  by  far 
the  most  numerous.  These  considered  themselves  the  real 
proprietors  of  the  land,  not  as  individuals,  but  as  communi- 
ties, mirs.  The  mir,  not  the  individual,  paid  taxes  to  the  Czar 
and  dues  to  the  landlord.  The  towns  were  governed  either 
by  a  voievodni,  appointed  by  the  prince,  or  a  starosta,  elected 
by  the  assembly  from  among  the  gentry.  In  assessing  the 
imposts  the  starosta  convoked  the  elders  of  the  towns  and  rural 
mirs.  In  the  family  the  father  had  arbitrary  power  over 
wife,  children  and  sons'  wives. 

The  nobleman  always  had  a  retinue  of  slaves,  which  he 
kept  about  his  person  and  ruled  with  such  rigor  as  accorded 
with  his  disposition.  The  practice  of  secluding  the  women 
at  home  and  veiling  when  away  prevailed.  Drunkenness  and 
debauchery  were  common  in  a  state  of  society  where  illiteracy 
was  almost  universal.  Superstition  and  ignorance,  there  as 
elsewhere,  were  inseparable  companions.  Holy  water  and 
relics  were  more  relied  on  for  miraculous  cures  than  the 
medicines  of  the  physicians,  and  were  perhaps  safer  in  the 


RUSSIA  391 

then  existing  state  of  the  profession.  During  the  reign  of 
Feodor,  son  of  Ivan  IV,  the  regent  Boris  Gudenof  promul- 
gated the  first  Ukase  forbidding  peasants  to  remove  from  one 
estate  to  another.  This  was  done  in  the  interest  of  the  poor 
nobility,  to  prevent  the  great  ones  from  drawing  away  the 
laborers  and  thereby  leaving  their  estates  uncultivated.  The 
number  of  farmers  being  inadequate  to  till  more  than  a  small 
part  off  the  land,  the  great  lords  by  offering  superior  ad- 
vantages could  prevent  the  cultivation  of  the  small  estates. 
The  puqx)se  of  Boris  in  this  order  was  to  enable  the  poorer 
nobility  to  render  military  service  and  defray  their  expenses, 
which  they  could  not  do  without  the  aid  of  the  serfs.  After 
the  death  of  Feodor,  who  was  mentally  so  weak  as  to  really 
exercise  no  authority,  and  of  his  brother  Dimitry  who  was 
probably  assassinated,  the  royal  line  failed  and  a  time  of 
turbulence  ensued.  For  a  very  short  time  Vladislas  of  Po- 
land was  in  possession  of  Moscow  and  recognized  by  the 
boyars  as  Czar,  but,  led  by  Minin  the  butcher  of  Kozma,  the 
Russians  gathered  and  drove  out  the  Poles.  Polish  dominion 
was  hardly  a  reality  and  had  no  effect  whatever  on  the 
growth  of  the  autocracy. 

In  1 613  a  great  national  assembly  gathered  at  Moscow, 
composed  of  church  dignitaries,  and  delegates  oif  the  nobles, 
the  merchants,  towns  and  distructs.  Michael  Romanof,  a 
youth  of  fifteen,  was  elected  Czar,  receiving  all  the  votes,  and 
became  the  founder  of  the  existing  dynasty.  By  raising  his 
father  Philaret  to  the  rank  of  patriarch  and  associating  him 
in  the  administration  of  the  government  Michael  was  greatly 
strengthened.  From  the  companions  and  military  followers 
of  the  early  princes  there  had  develop^ed  a  proud  nobility,  jeal- 
ous and  contentious  over  questions  of  precedence.  Each  in- 
sisted on  maintaining  rank  equal  or  sui>erior  to  that  attained 
l:)y  any  of  his  ancestors,  and  refused  to  accept  a  public  station 
lower  than  the  highest  held  by  any  of  his  predecessors.  Con- 
tentions over  these  matters  occasioned  ceaseless  striife  and 
annoyance  at  all  great  gatherings.  Feodor  III  (1676  to 
T682)  resolved  to  put  an  end  to  this  trouble.  He  required  all 
the  noble  families  to  deliver  into  court  their  pedigrees,  that 


392  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

they  might  be  examined,  on  the  pretext  that  he  wished  to 
correct  errors  in  them.  He  then  convoked  the  nobles  and 
with  the  assistance  of  the  clergy  burned  all  the  books  of  pedi- 
grees before  their  eyes. 

This  was  soon  followed  by  Peter  the  Great  (1689- 172  5) 
with  an  abolition' of  all  nobility,  except  that  based  on  public 
service,  civil  or  military.  Though  thoroughly  saturated  with 
the  spirit  of  autocracy  and  accustomed  to  use  his  arbitrary 
powers  without  mercy,  Peter  was  still  a  great  reformer  of  the 
most  practical  kind.  He  perceived  the  superior  industrial  and 
commercial  development  of  Western  Europe,  and  with  the 
spirit  of  the  earnest  searcher  for  knowledge  he  strove  to  learn 
their  ways  and  their  arts,  not  their  speculative  philosophy  or 
forms  of  government.  He  traveled  into  other  lands  and  even 
worked  as  an  apprentice  in  a  ship  yard  in  Holland.  His  eyes 
were  opened  to  some  of  the  most  serious  deffects  of  the  Rus- 
sian system  and  some  of  the  wrongs  habitually  inflicted  on 
the  weak.  He  put  an  end  to  the  seclusion  of  women  and  in- 
troduced western  fashions  of  dress  and  manners.  He  abol- 
ished the  flogging  of  insolvent  debtors  and  the  patrarchate. 
He  remodelled  the  organization  of  the  army  in  accordance 
with  western  methods  and  began  the  construction  of  a  navy. 
He  founded  St.  Petersburg  on  the  Neva,  whence  he  could  com- 
municate with  the  outside  world  by  sea,  having  wrested  the 
northern  country  from  the  Swedes.  He  brought  into  the 
empire  artisans  of  all  classes  from  every  country  to  instruct 
his  subjects  in  manufacturing  and  ship  building.  He  encour- 
aged trading  and  divided  the  merchants  into  guilds.  But 
with  all  his  innovations  he  jealously  maintained  the  autocracy, 
applied  the  knout  and  the  axe  as  he  deemed  best. 

Though  the  history  of  the  succession  of  rulers  (from  the  time 
of  Michael  shows  the  usual  incidents  of  intrigues,  murders, 
factions  and  palace  troubles  of  various  kinds,  the  central  idea 
of  an  autocracy  with  unlimited  power  has  been  steadily  as- 
serted by  the  Czars  and  acquiesced  in  by  the  nation.  The 
system  of  administration  has  been  shaped  to  eflfectuate  auto- 
cratic rule.  The  policy  of  conquest,  colonization  and  Russian- 
izing has  been  steadily  and  successfully  adhered  to,  with  the 


RUSSIA  393 

result  that  the  Czar  now  rules  over  an  empire  unequalled  in 
many  respects  by  any  other  in  the  world.  Not  only  have  the 
Tartars,  who  so  long  compelled  the  Muscovites  to  pay  tribute 
and  acknowledge  their  supremacy,  been  shorn  of  all  dominion 
in  Europe,  but  that  vast  breeding  ground  of  Asia,  whence  have 
swarmed  out  barbaric  hordes  to  sweep  with  cyclonic  force 
o\er  the  states  of  Europe,  has  been  reduced  to  the  sway  of  an 
European  state,  and  is  now  being  colonized  by  Slavs,  who 
carry  with  them  the  customs  and  the  language  olf  the  Mus- 
covites. The  Turks,  kinsmen  of  the  Mongols,  find  in  Russia 
their  most  inveterate  and  persistent  enemy,  and  little  by  little 
have  been  forced  to  withdraw  from  Europe. 

At  the  base  of  Russia's  social  system  it  still  has  the  demo- 
cratic mir  and  patriarchal  family.  Though,  looked  at  through 
western  eyes,  the  government  is  regarded  as  arbitrary,  cruel, 
corrupt  and  almost  unmitigatedly  bad,  it  has  undertaken  and 
completed  a  railroad  across  the  Asiatic  continent  and  taken 
the  lead  in  calling  a  peace  congress  to  enable  European  states 
to  reduce  their  vast  armies.  Unfortunately  this  has  not  saved 
it  from  a  most  humiliating  war  with  Japan,  or  the  great  war 
now  raging.  Whatever  the  faults  of  the  Russian  system,  it 
must  be  co'nceded  that  it  is  adapted  to  vast  expansion  over 
such  people  as  .it  deals  with.  How  well  it  ministers  to  their 
welfare  is  another  subject. 

The  most  notable  legislative  acts  since  the  time  of  Peter  the 
Great  are  the  ukases  of  1861  and  1866  liberating  the  serfs, 
the  judiciary  acts  of  Alexander  II  and  the  establishment  df 
the  Duma  in  1905  by  Nicholas  II.  This  was  a  first  step  in 
the  transition  from  an  autocracy  to  a  constitutional  mon- 
archy. By  the  manifesto  of  Oct.  17,  1905  Nicholas  decreed 
that  no  measure  should  become  a  law  without  the  consent  of 
the  Imperial  Duma,  a  freely  elected  national  assembly. 
Though  three  successive  Dumas  have  been  elected  and  held 
their  sessions,  the  transition  period  is  not  definitely  passed. 
The  Czar  still  asserts  autocratic  power  so  far  as  he  deems  it 
necessary. 

By  the  ukase  of  Feb.  20,  1906,  the  Imperial  Council  was 
associated  with  the  Duma  as  the  upper  house  of  the  national 


394  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

legislature.  This  Council  consists  of  196  members,  of  whom 
ninety-eight  are  appointed  by  the  Emperor  and  the  other 
ninety-eight  are  elective.  Of  the  elective  members  three  are 
chosen  by  the  monks,  three  by  the  secular  clergy,  eighteen  by 
the  corporations  of  nobles,  six  by  the  academy  and  universities, 
six  by  chambers  of  commerce,  six  by  the  industrial  councils, 
thirty-four  by  the  governments  having  zemstvos,  sixteen  by 
those  having  no  zemstvos,  and  six  by  Poland.  It  is  apparent 
from  the  composition  of  the  Council  that  imperial  influences 
dominate  in  it. 

The  Duma  is  the  lower  House  of  the  parliament  and  con- 
sists of  442  members  elected  by  a  very  complicated  electoral 
system,  designed  to  give  control  to  the  land-holding  class, 
while  allowing  the  poor  to  vote.  In  the  first  two  Dumas  the 
radical  popular  elements  predominated.  To  give  the  con- 
servatives control  the  method  of  election  and  basis  of  repre- 
sentation were  changed,  so  that  no  matter  how  large  a  popular 
majority  the  liberals  may  have  the  land-owners  will  still  be 
able  to  name  the  majority  of  the  Duma. 

The  Russian  parliament  thus  constituted  shares  with  the 
emperor  the  legislative  power,  except  in  measures  dealing  with 
the  organization  of  the  army  and  navy.  The  despotism  has 
not  yet  given  up  the  instruments  through  which*  despotism  may 
be  perpetuated.  Any  member  may  propose  a  law,  but  it  must 
be  submitted  to  the  minister  of  the  department  affected  by  it, 
who  may  consider  it  for  a  month  and  then  has  the  right  to 
prepare  the  final  draft  for  consideration  of  the  House.  The 
ministers  are  accountable  to  the  emperor,  not  to  the  parlia- 
ment. The  Czar  has  the  power  under  extraordinary  circum- 
stances when  the  Duma  is  not  sitting  to  issue  ordinances 
having  the  force  of  law.  While  these  must  be  laid  before  the 
Duma  at  its  next  sitting,  the  reserved  powers  to  proclaim  a 
state  of  siege  and  to  prorogue  or  dissolve  the  Duma  leave  the 
Emperor  with  absolute  power  whenever  he  sees  fit  to  use  it. 
Nevertheless  the  Duma  as  the  representative  body  oif  the  na- 
tion has  a  powerful  and  growing  influence  and  will  doubtless 
dominate  when  it  has  capacity  to  direct  public  affairs. 

By  the  law  of  Oct.  18,  1905,  a  council  of  ministers  to  assist 


RUSSIA  395 

the  Emperor  in  the  supreme  administration  was  created  with 
a  minister  president.  This  council  consists  of  the  ministers 
of  (i)  the  Imperial  Court;  (2)  Foreign  Affairs;  (3)  War 
and  Marine;  (4)  Finance;  (5)  Commerce  and  Industry;  (6) 
Interior;  (7)  Agriculture;  (8)  Ways  and  Communication; 
(9)  Justice;  (10)  Public  Instruction.  Aside  from  these  there 
are  the  Comptroller  and  the  Emperor's  private  Chancery. 
There  is  no  joint  or  common  responsibility  of  the  ministers. 
Each  is  accountable  to  the  Czar  and  to  him  alone,  and  may 
pursue  such  policy  as  the  Czar  authorizes  without  regard  to 
the  views  of  the  heads  of  other  departments.  The  Ministers 
however  meet  in  Council  for  consultation.  They  are  presided 
over  by  a  President  of  the  Council  of  Ministers,  named  by 
the  Czar.  Important  matters  arising  in  either  bureau  may  be 
discussed  in  these  meetings  or  taken  to  the  emperor  privately 
as  he  may  prefer.  Unity  of  control  and  direction  rests  in 
the  Czar  alone. 

Each  minister  is  assisted  by  a  council  which  seldom  meets, 
and  also  has  one  or  two  assistants  who  actively  participate  in 
the  transaction  of  affairs.  Most  o/f  the  bureaus  are  divided 
into  departments  according  to  the  nature  of  their  duties,  and 
have  officials  and  clerks  charged  with  the  minor  details. 

The  Senate,  established  by  Peter  the  Great  and  designed 
by  him  as  the  chief  governing  body  under  him,  though  now 
of  far  less  importance  than  the  Council,  has  seven  depart- 
ments exercising  administrative  functions,  through  which  the 
laws  are  promulgated,  the  acts  of  governors  examined  and 
their  conflicts  with  Zemstvos  adjudicated.  Two  departments 
are  the  courts  of  review  and  constitute  the  highest  court  of 
the  empire,  and  another  pronounces  judgments  in  political 
causes.  The  Holy  Synod,  made  up  of  metropolitans  and 
bishops,  rules  religious  affairs. 

For  purposes  of  administration  the  Euro])ean  empire  is  di^ 
vided  into  fifty  gnherniya  in  Russia  and  ten  in  Poland.  The 
\siatic  dominions  are  divided  into  the  lieutenancy  of  Caucasia 
and  the  governments  of  Turkestan,  Stepnoye,  East  Sil>eria 
and  Amur.  Each  government  is  divided  into  districts,  nye::d, 
under  a  police  captain,  ispravnik.    At  the  head  of  each  guber- 


396  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

niya  is  a  governor.  Formerly  his  powers  were  those  af  a 
local  autocrat,  as  representative  of  the  Czar,  but  now  they  are 
greatly  curtailed.  He  is  assisted  by  a  vice  governor  and  a 
government  council,  which  however  is  merely  advisory.  By 
the  ukase  of  1785  Catharine  II  confirmed  on  the  dvorniastvo, 
the  nobility  of  each  province,  the  right  to  name  the  local 
functionaries  and  justices,,  and  to  supervise  and  control  the 
local  administration,  justice,  police,  finances  and  all  matters 
of  local  interest.  Assemblies  were  held  once  in  three  years 
for  these  purposes,  and  they  appointed  the  ispraimiks  and  local 
justices.  Their  assemblies  sat,  elected  boards,  and  appointed 
commissions  to  inspect  the  governor's  accounts,  but  in  fact 
exercised  very  little  influence  on  the  administration,  which 
received  its  impulse  from  the  central  authority.  In  1864  the 
Zemstvo  or  territorial  assembly  was  established,  composed  of 
representatives  of  all  the  orders.  The  peasants,  the  towns 
and  the  nobility,  each  elect  their  representatives  separately. 
The  representation  is  apportioned  arbitrarily,  so  that  the  peas- 
ants, who  constitute  more  than  three-fourths  of  the  whole, 
have  less  than  forty  per  cent  of  the  delegates,  and  the  million 
landowners  have  over  forty-five  per  cent,  the  town  people 
choosing  the  balance.  The  mode  df  election  by  the  peasants  is 
that  the  heads  of  families  of  the  mirs  choose  a  council  for  the 
volost,  who  choose  electors  to  the  zemstvo.  These  convene 
and  name  the  delegates,  glasuyie,  who  compose  the  zemstvo. 
The  landowners  have  a  voice  in  the  election  of  their  dele- 
gates according  to  their  holdings,  the  small  proprietors  voting 
collectively.  Zemstvos  are  not  established  in  all  the  govern- 
ments, there  being  only  thirty-four  at  present.  The  powers 
conferred  on  the  dvorniastvo  was  substantially  all  transferred 
to  the  Zemstvo  with  others  added.  There  is  also  a  Zemstz'o 
of  the  district  with  local  powers  corresponding  to  those  of  the 
province.  These  relate  to  all  matters  of  purely  local  con- 
cern. They  apportion  the  taxes,  maintain  roads  and  schools, 
but  are  limited  in  their  expenditures  by  the  demands  of  the 
general  government  on  the  revenues.  To  much  of  their  legis- 
lation the  governor's  assent  is  necessary,  even  to  the  repair  of 
roads  and  the  increase  of  local  taxes.     To  other  acts  the 


RUSSIA  397 

ratification  of  the  Minister  of  the  Interior  is  required,  such 
as  large  loans.  All  resolutions  of  the  provincial  ::emstvo  must 
be  submitted  to  the  governor,  v^ho  has  a  suspensive  veto.  He 
must  send  in  his  decision  within  eight  days.  If  he  vetoes,  the 
::cmstz'o  must  again  consider  it,  and  if  again  passed  it  is  final, 
except  that  the  governor  may  still  refer  it  to  the  minister. 
The  controversy  is  then  decided  by  the  Senate.  Sessions  are 
held  annually.  For  the  execution  of  its  will  the  zemstvo  is 
dependent  on  the  governor,  over  whom  it  has  no  control. 
The  demand  for  schools  and  the  exhibition  of  a  willingness 
to  pay  for  them  evidence  the  value  of  the  influence  of  the 
governed  in  their  own  behalf,  the  mujiks  showing  the  most 
interest  and  liberality  of  any  class  in  that  direction.  The 
Avorst  difficulty  met  in  building  up  the  educational  system  is 
the  interference  of  the  inspectors,  who  are  jealous  of  the  e/f- 
fects  of  education.  A  remarkable  piece  of  local  legislation, 
quite  in  keeping  with  the  ancient  system  of  land  tenures,  is 
compulsory  mutual  insurance  of  the  property  of  the  peasants 
against  fire.  Among  the  institutions  introduced  by  the  zemst- 
z'os  were  savings  banks,  local  postal  facilities,  construction  of 
highways  and  railroads,  draining  of  marshes  and  planting 
trees  on  the  steppes.  The  main  characteristic  of  the  work 
thus  far  performed  by  them  is  that  it  is  'for  the  general  good 
of  the  i>eople.  To  check  the  freedom  of  expression  in  the 
zemstvos,  by  a  subsequent  edict  it  was  provided  that  the  chair- 
man should  be  nominated  by  the  minister,  and  that  he  might 
interrupt  any  si>eech  or  stop  the  consideration  of  any  motion 
or  resolution,  which  in  his  opinion  was  inimical  to  the  gov- 
ernment. The  different  zemstvos  were  also  prohibited  from 
communicating  with  each  other. 

At  the  head  of  the  Judicial  System  of  the  empire  stands 
the  Senate.  In  reviewing  the  proceedings  of  inferior  tribu- 
nals it  limits  its  consideration  to  questions  of  law  and  affirms 
or  reverses  the  decision  of  the  lower  court,  and  in  case  fur- 
ther proceedings  are  required  remands  the  cause  to  it.  It 
exercises  original  jurisdiction  in  the  trial  of  accused  members 
oif  the  administration,  and  is  the  auditor  of  accounts.  It  is 
a  department  of  heraldry  and  the  supreme  court  for  the  trial 


398  EVOLUTION   OF  GOVERNMENTS  AND  LAWS 

of  Tpolitkral  causes  and  offenses  against  the  State.  It  has  juris- 
diction over  differences  between  members  of  the  administra- 
tion, as  well  as  between  the  governors  and  the  zenvstvos.  The 
department  of  supreme  api>eal  is  divided  into  two  sections, 
one  for  civil  and  the  other  for  criminal  matters,  which  have 
jurisdiction  of  causes  appealed  from  all  parts  of  the  empire. 
The  judges  of  these  departments,  as  well  as  of  the  district 
courts,  are  appointed  by  the  Czar.  There  is  a  nominal  right 
•of  presentation  by  the  remaining  members  of  these  courts 
of  candidates  to  fill  vacancies,  but  their  choice  must  be  sanc- 
tioned by  a  procureur-general,  who  represents  the  state  as 
one  of  the  officers  of  each  court.  This  right  of  presenta- 
tion does  not  extend  to  the  presidents  or  vice-presidents  of  the 
court,  but  only  to  the  other  judges,  and  the  candidates  pro- 
posed may  be  accepted  or  not. 

In  order  to  give  the  judges  an  appearance  of  independence,, 
their  tenure  is  for  life,  unless  convicted  of  some  offense,  but 
while  they  may  not  be  arbitrarily  removed  from  office,  they 
may  be  transferred  to  a  distant  province  and  thus  in  effect 
condemned  to  exile.  Procureurs  are  appointed  by  the  ministry 
and  removable  at  pleasure. 

Substantially  contemporaneous  with  the  emancipation  of 
the  serfs  came  a  reformation  of  the  judicial  system.  At  the 
base  of  it  are  two  sets  of  courts.  For  the  peasants  there  are 
volost  courts,  elected  by  and  having  jurisdiction  over  peas- 
ants only  in  the  volost,  which  may  include  one  large  or  several 
small  mirs.  The  viirs  name  eight  candidates  from  among 
the  peasantry,  from  whom  the  chielf  of  the  volost  selects  four 
to  sit.  To  be  eligible  a  man  must  'be  thirty-five  and  able  to 
read  and  write,  where  such  selections  are  practicable.  The 
presiding  judge  of  the  court  is  selected  by  the  assembly  of 
elders  of  the  volost.  The  court  sits  at  least  once  a  fortnight, 
usually  on  Sundays  and  holidays.  It  has  jurisdiction  in  civil 
causes  involving  one  hundred  roubles  or  less,  and  in  petty 
misdemeanors  where  the  maximum  punishment  is  a  fine  of 
thirty  roubles,  seven  days'  imprisonment  or  six  days'  work  or 
twenty  strokes  with  the  rod.  Their  decisions  are  not  required 
to  be  in  accordance  with  general  law,  but  are  governed  by  the 


RUSSIA  399 

local  customs.  The  rod  however  may  only  be  used  on  the 
strong  who  are  able  to  bear  it.  Of  petty  matters  their  juris- 
diction is  extensive,  covering  those  concerning  communal 
rights,  inheritances  and  other  matters  growing  out  of  the 
peculiar  organization  of  rural  communities.  Appeals  are  al- 
lowed to  the  assembly  of  cantonal  rural  chiefs  in  civil  cases, 
where  imprisonment  or  corporal  punishment  is  imposed.  By 
the  reforms  of  Alexander  II  justices  of  the  peace  elected  by 
the  district  zemstvos  had  jurisdiction  over  all  minor  civil 
cases  involving  five  hundred  roubles  or  less  and  criminal  cases 
punishable  by  one  year's  imprisonment  or  three  hundred 
roubles  fine,  but  by  the  ukase  of  1889  these,  except  in  the  great 
cities,  were  abolished  and  in  lieu  cxf  them  the  office  of  rural 
chief  was  created  for  each  volost  with  substantially  the  same 
jurisdiction,  and  also  various  administrative  duties.  These 
chiefs  must  be  landowners  belong  to  the  local  nobility  and  are 
paid  a  salary  by  the  state.  They  are  nominated  by  the  gover- 
nor of  the  province  on  consultation  with  the  marshal  of  the 
nobility  of  the  district  and  confirmed  by  the  Minister  of  the 
Interior.  The  chief  has  supervision  of  the  financial  and 
police  affairs  of  the  commune  and  nominates  the  members  of 
the  peasants'  volost  court.  From  the  deci'sions  of  the  chief  an 
appeal  lies  to  the  district  assembly  of  canton  chiefs.  They 
receive  in  rural  districts  2,200  rou'ble^  per  year.  The  district 
courts,  which  are  given  general  original  jurisdiction  in  both 
civil  and  criminal  causes,  have  three  judges  and  a  jury.  The 
judicial  reforms  of  Alexander  II,  which  unfortunately  have 
not  been  steadily  carried  into  effect,  contemplated  the  com- 
plete separation  of  judicial  from  administrative  powers  and 
public  trials  on  the  oaths  of  witnesses  with  the  aid  of  advo- 
cates, following  the  most  advanced  models  of  western  nations. 
Of  these  district  tribunals  there  were  in  European  Russia 
about  sixty,  and  over  them  nine  appelate  courts  located  at 
St.  Petersburgh,  Moscow,  Kazan,  Saratof,  Kharakof,  Odessa, 
Kief,  Smolensk,  and  Vilna.  In  trials  by  jury  the  court  ans- 
wers to  the  law  and  the  jury  only  as  to  the  facts.  The  un- 
expected acquittal  of  Vera  Zassulich  for  the  murder  of  Gen- 
eral Trepof  resulted  in  subsequent  denial  of  jury  trial  in  simi- 


k 


400  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

lar  cases,  which  were  transferred  to  a  department  of  the 
senate  or  heard  before  a  mihtary  court.  Reforms  in  the 
judicial  system  from  the  time  of  Catharine  II  to  the  present 
have  been  introduced  modified  and  abandoned,  and  with  the 
theory  of  a  complete  centering  of  executive,  legislative  and 
judicial  power  in  the  Czar  still  fully  recognized,  all  innova- 
tions are  to  be  looked  on  as  tentative.  Until  the  judiciary  be- 
comes independent  of  the  will  of  the  Czar,  no  permanent 
separation  of  powers  can  be  assured.  The  ministry  are  still 
afraid  oif  an  independent  judiciary,  and  the  system  of  ap- 
pointments is  calculated  to  insure  a  degree  of  subserviency  in 
the  courts.  The  vast  empire  is  ruled  in  fact  by  the  ministers 
and  their  agents. 

In  the  actual  administration  of  the  government  the  police 
department  plays  a  most  important  part.  There  are  two 
classes  of  police  officers,  one  the  regular  under  the  Minister 
of  the  Interior,  the  other  poHtical,  directly  under  the  Czar 
himself.  In  the  districts  into  which  the  provinces  or  govern- 
ments are  divided  the  chief  officer  is  the  ispravnik,  a  police 
officer.  From  the  time  of  Catharine  II  till  the  emancipation 
these  officers  were  elected  by  the  nobility,  but  are  now  ap- 
pointed by  the  governors.  A  great  multiplicity  of  duties  de- 
volve on  the  police  officers.  Through  them  all  administrative 
orders  must  be  executed,  conspiracies  must  be  detected,  con- 
spirators arrested  and  prosecuted.  They  are  health  officers, 
censors,  prosecutors  in  the  lower  courts,  overseers  of  recruits 
and  soldiers  of  the  reserve  and  supervisors  of  passports.  In 
the  small  towns  and  country  there  is  no  protection  against  the 
arbitrary  exercise  of  their  authority.  It  was  through  the 
famed  Third  Section  of  the  Chancellery,  the  state  police,  that 
the  arbitrary  autocratic  powers  of  government  were  mainly 
exerted.  Though  this  has  been  in  form  abolished,  its  sub- 
stance is  still  preserved,  and  police  agents  enter  dwellings,  as 
well  as  all  other  places,  at  any  time  of  day  or  night  without 
process,  and  make  searches,  seizures  and  arrests  at  will.  The 
governors  of  provinces  close  at  will  any  industrial  establish- 
ment, forbid  an  individual  to  reside  in  a  city,  and  take  politi- 
cal suspects  away  from  the  regular  courts.     The  government 


RUSSIA  401 

may  at  any  time  place  any  province  or  district  under  a  "state 
of  extraordinary  protection"  under  the  most  arbitrary  military 
rule.  By  administative  decree  the  publication  of  any  periodi- 
cal or  other  publication  may  be  suspended  or  prohibited,  and 
an  educational  establishment  may  be  closed.  In  every  city  of 
any  importance  there  is  a  colonel  or  captain  of  police  to  v^hom 
no  place  may  be  closed  and  from  v^hom  nothing  may  be  con- 
cealed. His  business  is  to  keep  all  under  surveillance,  officials 
as  v^ell  as  citizens.  To  aid  him  he  has  secret  agents  scattered 
everywhere.  Every  indiscreet  remark  is  reported,  often  v^ith 
direful  consequences. 

The  main  purpose  of  the  Czar  in  maintaining  his  secret 
police  w^as  to  have  a  system  through  w^hich  he  could  keep  in- 
iformed  of  the  doings,  not  merely  of  his  subjects  in  general, 
but  of  the  officials  of  the  empire  as  v^ell.  Of  all  the  difficulties 
under  which  an  autocrat  ruling  a  vast  empire  labors,  none 
is  greater  or  of  more  moment  than  that  of  gaining  reliable 
information  concerning  the  multiplicity  of  affairs  which  he 
is  called  on  to  direct.  A  secret  police,  composed  exclusively 
of  trustworthy  and  upright  men,  would  be  of  incalculable 
value  to  him,  but  made  up  of  corrupt  and  unreliable  ones  it 
becomes  a  means  for  perverting  the  best  of  intentions  on  the 
part  of  the  ruler. 

The  constitution  of  Russian  society,  while  now  undergoing 
some  changes,  is  still  essentially  the  same  as  for  several  hun- 
dred years.  More  than  eighty  per  cent  oif  the  total  population 
are  classed  as  peasants  and  live  mainly  in  their  rural  villages, 
mirs.  The  mir  is,  and  has  been  from  a  date  long  anterior  to 
the  establishment  of  the  empire,  a  democratic  self-governing 
community.  It  holds  its  lands  in  common  and  pays  its  dues 
to  the  government  as  a  unit.  The  aft'airs  of  the  mir  are  man- 
aged by  an  assembly  including  the  heads  of  all  the  families. 
The  tillable  lands  are  divided  and  apportioned  to  each  work- 
ing unit.  Women  charged  with  the  support  of  a  family  are 
entitled  to  take  part  in  the.  assembly.  Between  the  members 
of  the  community  there  is  equality  of  right  in  the  village 
property,  but  the  culture  is  not  in  common.  Pasture  lands, 
and  in  some  cases  meadow  and  timber  lands,  are  used  in  com- 


402  EVOLUTION  OF  GOVERNMEXTS  AND  LAWS 

mon,  the  hay  of  the  meadows  and  trees  of  the  forest  being 
divided  for  use.  The  custom  of  building  their  dwellings  in 
village  .form  has  long  been  maintained,  and  communities  which 
have  settled  in  the  United  States  have  brought  this  custom 
with  them.  In  the  settlement  of  the  affairs  of  the  mir  unani- 
mous agreement  is  required.  All  are  required  to  attend  meet- 
ings of  the  mir.  The  majority  may  not  enforce  its  will  on 
the  minority.  The  assembly  of  the  mir  may  be  convoked  by 
the  call  of  any  one.  The  chief  officer  is  the  Starosta,  who  is 
paid  by  the  mir  and  is  charged  with  the  preservation  of  order 
in  the  community.  He  supervises  the  roads,  manages  the 
communal  funds,  the  schools  and  hospitals  if  any,  and  any 
other  public  institutions  of  the  mir.  He  looks  after  the  col- 
lection of  the  taxes  and  deals  with  the  government  officials  in 
payment  of  public  dues  and  other  matters.  He  is  a  general 
police  officer  and  arrests  persons  charged  with  offenses.  He 
is  the  general  business  representative  of  the  mir,  but  in  all 
things  he  is  its  servant,  not  its  master  and  must  carry  out 
its  orders. 

A  collection  df  mirs,  varying  to  include  from  six  hundred 
to  four  thousand  persons  who  were  formerly  charged  with 
poll  tax,  is  called  a  volost.  At  the  head  of  this  is  a  starschina, 
elected  by  representatives  of  the  mirs,  who  holds  for  a  term 
of  three  years.  He  is  assisted  >by  a  board,  volostnoye  pravl- 
myc,  made  up  of  all  the  starostas  of  the  mirs  or  their  assist- 
ants or  si>ecial  representatives  chosen  by  the  mirs.  Important 
matters  are  decided  by  this  board  and  minor  ones  only  by 
the  starosta.  Aside  from  these  officials  the  mirs  and  board 
employ  such  agents  as  their  affairs  require  and  pay  them  for 
their  services.  An  important  personage  in  the  mir  is  the  clerk, 
who  keeps  its  records,  and  though  without  any  recognized 
authority,  by  reason  of  superior  education  often  wields  great 
influence.  The  scarcity  of  persons  able  to  write  frequently 
makes  it  necessary  to  bring  a  clerk  from  without. 

The  zwlost  assembly  elects  the  judges,  appoints  representa- 
tives to  district  assemblies,  and  provides  (for  roads,  schools, 
hospitals  and  public  works  which  a  single  mir  cannot  under- 
take.    The  assembly  of  the  mir  has  power  to  discipline  its 


RUSSIA  403 

members,  even  to  expel  them,  and  to  admit  new  ones.  Meet- 
ings are  usually  held  in  the  open  air  and  are  without  any  set 
form  of  procedure.  Sunday  after  mass  is  a  favorite  time  of 
meeting.  While  unanimous  agreement  is  necessary  to  a  de- 
cision in  the  mir,  a  majority  may  decide  in  the  volost  assembly. 

Similar  in  principle  to  the  peasants'  commune  is  the  artel,  a 
name  given  to  an  association  of  workmen  engaged  in  the  same 
trade  and  working  in  concert.  A  head  man  is  elected  by  the 
members,  who  represents  the  artel  m  its  dealings  with  em- 
ployers and  the  outside  world.  The  wages  earned  by  all  are 
equally  divided  among  the  members.  The  artels  are  usually 
small,  seldom  exceeding  twenty  in  number,  and  they  expel 
and  admit  members  at  will. 

All  nobility  in  Russia  starts  from  official  station.  Two 
sorts  are  recognized,  hereditary  and  personal.  The  heredi- 
tary from  the  time  of  Peter  are  the  officers  of  the  army  having 
the  grade  of  ensign  or  higher  and  civilians  of  equal  grade  and 
their  descendants.  Inferior  public  servants  belong  to  the  per- 
sonal nobility  and  are  merely  free  citizens.  The  number  is 
necessarily  very  great,  about  six  hundred  thousand  hereditary 
and  three  hundred  and  fi(fty  thousand  personal.  The  feudal 
system  never  obtained  in  Russia,  and  it  has  no  nobility  of  the 
kind  developed  in  western  Europe  having  hereditary  political 
power.  There  are  fourteen  grades  of  rank.  From  the  time 
of  Peter  special  dignities  have  been  conferred  by  special  di- 
ploma making  about  one  hundred  counts,  some  fifteen  princes 
and  sundry  barons.  Titles  are  inherited  equally  by  all  the 
children.  There  is  no  primogeniture.  Till  the  time  of  Alex- 
ander II  the  nobility  enjoyed,  in  common  with  the  merchants 
and  clerg}^  the  privileges  of  exemption  from  militar}^  con- 
scription, payment  of  poll  taxes  and  corporal  punishment.  Of 
these  the  first  has  been  taken  away,  and  the  others  have 
ceased  to  be  distinctions  through  the  abolition  of  the  poll  tax 
and  flogging. 

Prior  to  the  emancipation  act  of  February  19,  1861,  the  title 
to  the  lands  of  the  empire  was  mainly  in  the  nobility  and  the 
crown.  There  was  assigned  to  each  village  a  tract  for  the 
cultivation  and  use  o/f  its  inhabitants,  but  thev  wxre  bound  to 


I 


404  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

work  such  portion  of  their  time  as  the  landlord  exacted, — 
usually  one  half — on  his  estate  without  pay.  The  allowance 
of  land  to  the  peasant  to  cultivate  for  his  own  use  was  in 
effect  but  affording  him  the  means  to  live.  All  the  benefit  of 
his  strength,  in  excess  of  that  necessarily  expended  for  his 
maintenance  and  the  support  of  his  family,  went  to  the  land- 
lord. The  emancipation  act  of  1861,  which  applied  only  to 
the  serfs  of  the  nobility,  was  designed  to  allow  them  as  their 
own  the  lands  which  had  been  assigned  to  them  for  their  in- 
dividual support  theretofore,  but  it  is  said  that  through  defects 
in  the  practical  execution  oif  it  their  holdings  were  in  fact 
reduced,  and  thus,  so  far  as  land  is  concerned,  they  were 
rather  impoverished.  The  act  of  1866  emancipating  the 
peasants  on  the  crown  estates  was  much  more  liberal  and  gave 
them  twice  as  much  as  they  had  been  allowed  before. 

In  Russia  the  usurer  is  an  important  factor,  and  the  wide 
fluctuations  in  crop  returns  render  the  peasants  peculiarly  at 
his  mercy.  To  pay  taxes,  if  not  merely  to  sustain  life,  they 
must  frequently  borrow,  and  to  borrow  is  to  invite  ruin.  Se- 
curity for  small  loans  is  frequently  taken  in  the  form  of 
labor  contracts  to  the  neighboring  landlord,  from  which  the 
laborer  finds  it  difficult  to  extricate  himself.  The  liberation  of 
the  personal  servants  of  the  landlords  at  the  time  of  the  eman- 
cipation and  the  loss  of  their  lands  by  misfortune  or  improvi- 
dence by  peasants  have  produced  a  considerable  class  of  land- 
less farm  laborers,  which  seems  to  be  steadily  increasing.  The 
peasant  proprietors  hold  about  twenty-seven  per  cent  of  the 
lands  of  the  empire,  though  the  peasants  number  more  than 
three-fourths  of  the  whole  population  and  pay  the  great  bulk 
of  the  taxes.  The  remainder  is  held  by  the  landlords  and  the 
crown,  and  is  cultivated  largely  by  peasants  under  what  are* 
termed  bondage  contracts,  contracts  of  service  for  advances 
made.  But  twenty-one  per  cent  of  the  whole  area  of  European 
Russia  is  cultivated.  Serfdom  did  not  extend  over  all  Russia. 
Siberia,  the  country  about  the  White  Sea  and  the  Cossacks  of 
the  south  rejected  it.  The  Tartars  of  the  east,  the  Rouman- 
ians, the  German  colonists  and  the  Finns,  as  a  rule  maintained 
their  liberties.     By  the  emancipation  the  serfs  were  not  re- 


RUSSIA  405 

lieved  entirely  of  the  burdens  of  their  landlords.  The  peas- 
ants, in  lieu  of  their  former  services  to  the  landlords,  were 
bound  to  pay  an  annual  tribute,  varying  in  amount  in  differ- 
ent places  according  to  circumstances.  By  a  subsequent  ar- 
rangement the  state  undertook  to  aid  the  peasants  to  redeem 
and  discharge  the  perpetual  rents  for  a  lump  sum,  loaned  to 
them  by  the  state,  thus  releasing  the  peasants  from  all  obliga- 
tion to  the  landlords  and  transferring  the  obligation  to  the 
state. 

The  village  system  since  the  redemption  is  still  maintained 
as  before,  and  the  lands  still  belong  to  the  inir  as  a  unit. 
Cities  in  Russia  are  of  far  less  importance  than  in  any  other 
equally  great  country.  The  people  are  divided  into  two  main 
classes,  the  merchants,  who  have  a  certain  amotmt  of  capital 
and  pay  license  dues  in  return  for  priviliges  accorded  them, 
and  the  mechanics  and  others  of  the  humbler  sort.  The  mer- 
chants are  divided  into  three  guilds ;  the  first  pay  five  hundred 
roubles  a  year  and  have  the  privilege  of  trading  throughout 
the  empire  and  abroad ;  members  of  the  second  are  limited 
to  home  trade,  and  the  third  are  the  small  traders.  Each 
guild  has  its  board  and  elects  its  head.  Prior  to  the  emanci- 
pation merchants  were  prohibited  from  owning  inhabited 
lands,  i.e.  estates  with  serfs.  This  restricted  their  holdings 
to  city  property.    The  restriction  is  now  removed. 

A  peculiarity  of  Russian  society  is  the  scarcity  of  profes- 
sional men.  The  medical  profession  languished  mainly  from 
w^ant  of  schools.  The  legal  profession  had  no  standing,  pro- 
cedure in  the  courts  being  secret  and  conducted  by  officers  of 
the  government.  The  reforms  of  Alexander  II  make  the 
courts  open  to  all  classes  equally,  require  trials  to  be  public 
and  allow  parties  to  be  heard  in  person  and  by  attorney.  This 
has  given  life  to  the  profession  oif  the  lawyer.  At  so  low  an 
ebb  was  legal  training,  that  it  is  said  that  a  considerable  num- 
ber of  the  judges  of  the  courts  of  general  jurisdiction  had  no 
previous  training  in  the  law.  The  leading  peculiarities  of 
Russian  society  are  its  division  into  two  main  classes,  the 
peasants  and  the  office-holding  and  land-owning  nobility,  and 
the  meagre  numbers  and  small  importance  of  what  in  some 


4o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Other  countries  make  up  iwhat  is  termed  the  middle  class,  but 
which  in  fact  is  morally  and  intellectually  the  highest.  Russia 
is  also  peculiar  in  that  the  number  of  its  landless  and  depend- 
ent class  is  smaller  than  in  any  other  great  country. 

The  educational  system  is  yet  in  its  infancy  and  illiteracy  is 
the  rule  all  over  Russia.  This  is  not  due  to  any  disinclination 
to  learn  or  want  of  capacity  in  the  children.  No  where  are 
more  apt  students  to  be  found.  At  the  great  cities  there  are 
universities,  which  in  many  respects  rank  well  with  the  best 
schools  of  Europe,  but  are  afflicted  with  excessive  govern- 
mental supervision.  They  are  revolutionary  hot  beds,  and 
rigid  police  supervision  of  the  students  is  regarded  as  indis- 
pensable. The  natural  spirit  of  the  students  induces  them  to 
revolt  against  this  interiference,  and  riots  are  not  infrequent. 
The  government  has  the  impossible  task  of  giving  a  liberal 
education  to  the  youths  and  still  retaining  respect  for  despot- 
ism. Scattered  through  the  provinces  are  high  schools,  at 
which  instruction  in  the  dead  languages  is  given  along  with 
other  branches.  Primary  schools  are  yet  more  numerous,  but 
hardly  one-tenth  of  the  children  are  as  yet  afforded  even  the 
rudiments  of  education.  Only  about  one-ninetieth  of  the 
revenues  raised  from  the  people  is  applied  to  schools.  The 
army,  navy  and  public  officials  absorb  the  lion's  share.  To  the 
means  furnished  the  schools  by  the  government  must  be  ad- 
ded about  as  much  more  raised  by  the  zemstvos,  besides  that 
paid  for  private  instruction.  The  people  everywhere  show 
great  interest  in  obtaining  the  'benefit  of  schools,  and  the  peas- 
ants especially  exhibit  much  liberality  in  taxing  themselves  to 
establish  them. 

Railroads  and  telegraphs  are  mainly  in  the  hands  of  the 
government,  and  a  system  of  banks  is  also  maintained.  Manu- 
facturing industries  are  still  in  a  very  backward  state. 

In  religion  most  of  the  Russians  adhere  to  the  Greek  Church. 
The  clergy,  who  are  dependent  on  the  Czar  for  their  positions, 
have  for  centuries  been  the  mainstay  of  his  authority.  Over 
an  illiterate  and  devout  people  they  exercise  a  most  powerful 
influence,  and  the  duty  of  submission  to  the  Czar's  authority 
is  constantly  inculcated  by  every  priest  in  the  land.     Perhaps 


RUSSIA  407 

no  other  people  in  the  world  are  so  thoroughly  loyal  to  their 
chief  ruler  as  they,  and  this  is  largely  due  to  the  influence  of 
the  clergy. 

In  its  governmental  system  Russia  seeks  to  administer  the 
affairs  of  its  vast  empire  from  a  single  head.  Its  territory  is 
not  divided  into  either  tributary  or  self-governing  dependen- 
cies, but  is  a  compact  and  largely  homogeneous  state.  The 
central  power  connects  itself  directly  with  each  part  down  to 
the  peasant  village.  It  allows  and  in  fact  derives  great  ad- 
vantage from  the  democratic  mirSj  which  in  effect  reduce  the 
number  of  units  with  which  it  has  to  deal  from  that  of  the 
individuals  to  that  of  the  mirs  or  volosts.  Local  selif-govern- 
ment  over  limited  areas  aids  autocracy.  The  force  of  the 
volost,  made  up  of  unlettered  peasants,  is  insufficient  to  en- 
danger or  interfere  with  the  central  authority.  The  recently 
established  zemstvos,  if  permitted  to  consult  and  combine  with 
one  another,  might  check  arbitrary  power,  but  such  combina- 
tions are  jealously  prohibited,  and  the  zemstvo  is  not  sustained 
or  invigorated  by  that  inherited  strength,  which  the  primitive 
village  has  brought  down  from  antiquity.  Its  powers  are 
more  strictly  limited  and  its  functions  not  generally 
comprehended. 

The  system  of  laws  which  prevails  exhibits  peculiarities 
due  to  the  manner  of  its  development.  Although  it  cannot 
be  said  that  all  its  laws  are  an  indigenous  growth,  and  that 
none  have  been  borrowed  from  other  nations,  the  system  is 
distinctly  Russian.  It  is  in  main  a  product  of  local  customs, 
peculiar  to  Russia,  which  furnish  the  laws  of  the  peasant 
communities,  and  of  edicts  of  the  Czars.  There  never  has 
been  an  adoption  of  the  legal  system  of  any  other  state  or 
people.  From  time  to  time  the  Czar  has  issued  his  ukase, 
covering  any  subject  he  had  in  mind  in  his  own  way,  without 
regard  to  anything  which  his  predecessors  had  done.  Russian 
Czars  have  frequently  been  bold  innovators.  As  a  reformer 
the  Czar  has  ideal  conditions  for  action.  He  makes  the  law 
as  he  wills.  The  emperors  have  for  many  generations  realized 
the  necessity  of  governing  in  accordance  with  declared  prin- 
ciples, but  they  have  been  unwilling  to  part  with  their  judicial 


4o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

power,  or  speaking  more  accurately,  with  the  power  to  set 
aside  and  disregard  their  own  rules  wherever  deemed  ex- 
pedient. The  laws  therefore  have  been  only  for  the  guidance 
of  subordinates,  and  then  only  so  far  as  seemed  consistent 
with  the  policy  of  the  bureaucracy.  There  have  been  various 
compilations  of  the  laws  of  the  empire,  beginning  with  that  di 
laroslav  in  the  tenth  century  and  ending  with  that  of  Speran- 
skiy in  the  reign  of  Nicholas  I.  This  last  compilation  fills 
forty-five,  quarto  volumes,  containing  the  laws  of  the  empire 
arranged  in  chronological  order.  These  laws  have  been  con- 
densed into  a  code,  Svod,  classified  by  subjects,  and  included 
in  fifteen  volumes,  containing  over  sixty  thousand  articles  in 
fifteen  hundred  chapters.  This  vast  mass  of  legislation  would 
seem  to  be  sufiicient  to  afford  fixed  rules  for  most  cases,  but  as 
3  matter  of  fact  there  is  much  contradiction  and  inconsistency 
in  the  ukases  of  the  various  Czars,  issued  at  different  times 
and  acting  under  varying  impulses.  To  the  subject  these  laws 
have  afforded  no  safe  rule  of  conduct  or  protection  olf  prop- 
erty rights,  because  of  the  system  of  administration.  Trials 
in  the  courts  of  both  civil  and  criminal  causes  until  1864  were 
secret,  the  evidence  being  taken  down  in  writing.  A  system 
of  appeals  from  one  court  to  another  has  long  prevailed,  but 
this  adds  little  to  the  suitor's  security  and  causes  much  delay 
and  expense.  Lawyers  were  not  advocates  but  merely  inter- 
cessors with  the  judges.  That  best  of  all  guarantees  for  the 
integrity  of  judges,  trials  in  the  presence  of  the  public  and 
of  the  professional  lawyers,  whose  business  it  is  to  extract  the 
truth  from  parties  and  witnesses  and  apply  the  law  to  the 
facts,  was  not  given  till  the  relforms  of  Alexander  II.  While 
long  steps  in  the  right  direction  have  been  made  in  the  refor- 
mation of  the  judiciary,  there  is  still  much  to  be  desired  in 
the  way  of  independence  and  fearlessness  on  the  bench.  This 
may  be  said  with  truth  of  every  other  land,  as  well  as  Russia. 
There  it  is  the  Ministers  whose  influence  is  regarded  as  most 
baneful,  elsewhere  it  is  mainly  the  rich  and  powerful.  The 
principal  complaints  urged  against  the  Russian  system  are 
for  arbitrary  arrests  and  punishments ;  lack  of  security  for  the 
citizen  against  the  malice  of  police  officers;  cruelty  and  bru- 


RUSSIA  409 

tality  in  the  manner  of  executing  sentences;  insecurity  in  the 
home  against  searches,  seizures  and  arrests,  and  pohce  inter- 
ference with  the  private  Hfe  df  the  citizen.  To  this  is  added 
a  charge  of  general  and  all  pervading  corruption  among 
public  officials,  courts,  police  officers,  governors  and  even  min- 
isters. Just  how  far  this  sweeping  charge  is  justified  by  the 
facts  it  is  impossible  to  state,  but  the  want  of  that  effective 
check,  accountability  to  the  people  for  whom  and  on  whom 
authority  is  exercised,  renders  it  probably  true  that  the  charge 
is  well  sustained.  The  Czar  and  the  ministers  seek  to  keep 
informed  of  all  that  is  doing  through  the  secret  police  and 
spies,  but  of  the  integrity  of  these  they  have  no  better  guar- 
anty than  of  the  officials  they  are  sent  to  watch.  The  funda- 
mental difficulty,  which  no  autocratic  government  has  ever 
permanently  overcome,  is  that  the  numlber  of  matters  to  be 
investigated  is  too  great  and  the  scene  of  action  is  too  far 
away  for  any  set  of  men  at  the  capital  to  be  able  to  learn  the 
facts  and  act  intelligently  on  them.  To  conduct  the  affairs  of 
so  vast  an  empire  safely  and  intelligently  much  must  be  re- 
ferred to  the  people  of  each  district,  who  alone  can  be  relied 
on  to  bring  to  account  their  local  oppressors  or  incompetent 
public  servants.  With  every  step  forward  in  civilization  an 
accession  of  mental  and  moral  force  in  the  governing  head  is 
required,  which  no  one  man  or  small  clique  of  men  can  pos- 
sibly furnish.  The  knowledge,  virtue  and  power  of  the  great 
multitude  must  be  drawn  from  in  order  to  move  iforward 
safely  and  rapidly.  The  purest  and  best  part  of  the  admin- 
istration of  Russian  affairs  will  generally  be  found  to  be  that 
under  the  immediate  supervision  of  the  Czar  himself  and  that 
directly  managed  by  the  people  in  their  local  concerns. 

Authorities 

Rambaud:     History  of  Russia. 
Beaulieu :     The  empire  of  the  Tzars. 
Stepniak :    Russia  under  the  Tzars. 
Stepniak:     The  Russian  Peasantry. 
Encyclopaedia  Britannica. 


CHAPTER  XVII 


Italy^ 


Were  it  not  for  the  fact  that  the  city  of  Rome  is  included 
within  its  boundaries  and  is  now  its  capital,  there  vi^ould  ap- 
pear little  connection  between  modern  Italy  and  ancient  Rome. 
The  boundaries  of  the  present  kingdom,  though  clearly  marked 
by  nature,  were  never  oif  importance  to  Rome.  Her  policy 
and  system  both  under  the  republic  and  empire  applied  equally 
to  more  distant  lands.  As  a  political  unit  Italy  has  no  history 
till  within  the  last  half  century.  After  the  fall  of  the  western 
empire  came  the  Goths  and  established  a  kingdom  over  the 
peninsula,  nominally  under  commission  from  the  eastern  Em- 
peror, but  really  with  little  recognition  of  his  authority.  Then 
followed  the  effort  of  Justinian  to  reestablish  the  Byzantine 
rule  and  the  appointment  of  an  exarch  at  Ravenna  to  rule  as 
his  representative.  Then  came  the  invasion  of  the  Lombards, 
also  a  German  race.  They  came  not  merely  as  an  invading 
army  but  as  a  moving  nation  with  wives,  children  and  all 
their  chattels,  occupied  the  valley  of  the  Po  and  moved  slowly 
down  along  the  interior  of  the  peninsula,  leaving  Venice, 
Ravenna,  Rome  and  other  portions  untouched.  From  their 
advent  till  modern  times  the  sovereignty  over  Italy  was  di- 
vided. The  temporal  power  of  the  popes,  like  that  of  feudal 
lords  in  later  times,  had  if  or  its  foundation  a  recognized  owner- 
ship of  land.  By  various  means  the  Roman  pontiff  acquired 
large  possessions  in  and  about  Rome,  over  which  he  assumed 
civil  authority.  Under  Gregory  I  (590  to  604)  these  posses- 
sions were  largely  increased.  In  754  the  Prankish  king  Pepin, 
having  taken  up  the  quarrel  of  the  Pope  with  the  Lombards 
and  defeated  them,  handed  over  to  Pope  Stephen  III  a  con- 

^  For  Mediaeval  events  in  see  ch.  XV.  For  a  full  account  of  the  legisla- 
tion of  the  Goths,  Burgundians,  Lombards  and  Franks  see  Calisse's  History 
of  Italian  Law,  Continental  Legal  History  Series,  Vol.  i. 

410 


ITALY  411 

siderable  district  including  Ravenna  and  Pentapolis,  '*to  be 
held  and  enjoyed  by  the  pontiffs  of  the  Apostolic  See  forever." 
This  was  followed  in  800  by  the  alliance  of  Pope  Leo  III 
with  Charlemagne,  by  which  the  latter  received  the  imperial 
crown  from  the  former  and  in  return  recognized  the  spiritual 
supremacy  of  the  Pope  throughout  Christendom.  The  south- 
ern portion  of  the  peninsula  did  not  submit  to  Charlemagne, 
but  recognized  the  ultimate  sovereignty  of  the  emperor  at 
Constantinople.  After  the  Prankish  empire  fell  into  decay 
there  followed  a  period  oif  discord  and  lack  of  central  author- 
ity, though  there  was  a  titular  king  of  Italy,  who  waged  war 
on  the  local  nobility  to  enforce  his  authority  with  varying 
success.  In  961  the  German  emperor  Otto  entered  Lombardy 
and  in  the  next  year  was  crowned  emperor  by  the  Pope  at 
Rome.  The  dominion  of  Otto  and  succeeding  German  em- 
perors was  never  fully  recognized  throughout  Italy,  and  wars 
frequently  occurred  in  efforts  to  enforce  their  authority.  Then 
came  the  war  of  the  investitures,  which  was  a  struggle  for 
actual  power  between  the  Pope  and  the  Emperor.  Following 
this  conflict,  though  it  may  not  be  safe  to  say  as  a  result  of  it, 
came  the  age  of  free  cities.  The  feudal  system  was  intro- 
duced into  Italy  and  was  enforced  in  rural  communities,  but 
the  towns  adopted  popular  systems  and  asserted  their  inde- 
pendence. The  history  ai  these  petty  states  affords  a  most 
valuable  lesson  in  the  subject  of  our  study.  Their  develop- 
ment was  along  similar  lines  with  substantially  similar  results. 
At  first  a  comparatively  few  people  joined  together  for  mutual 
aid  and  protection.  The  system  of  municipal  government  at 
first  adopted  was  popular  in  character  and  design  to  protect 
the  more  humble  citizens  against  aggression.  The  tyrant  most 
dreaded  was  usually  a  feudal  lord,  against  whom  the  burghers 
united.  Joining  for  defense  against  the  exactions  of  rapacious 
nobles,  they  were  disposed  to  accord  justice  to  each  other. 
This  necessarily  implies  consideration  for  the  rights  of  the 
humble.  With  superior  moral  principles  as  the  basis  of  their 
institutions  they  naturally  drew  strength  and  gained  numbers 
from  among  those  who  could  escape  from  the  dominions  of 
oppressive  nobles.     With  Ifreedom  of  action  accorded  to  each 


4T2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

citizen  and  protection  to  all  these  little  republics  exhibited  a 
degree  of  activity  and  force  far  exceeding  that  to  be  found 
among  people  ruled  by  petty  despots,  and  the  development  of 
industries  and  trade  went  forward  at  a  remarkable  pace. 
Though  the  free  cities  succeeded  in  combining  against  com- 
mon enemies  at  times,  they  soon  manifested  jealousies  and 
hostility  toward  each  other.  Like  the  ancient  Greeks  they 
lacked  capacity  for  combining  for  common  ends,  and  went  to 
war  instead.  In  their  several  internal  organizations  demo- 
cratic systems  were  gradually  converted  into  oligarchical  ones 
and  these  generally,  perhaps  universally,  divided  into  warring 
factions,  which  were  only  subdued  by  a  despot,  usually  from 
without  the  particular  city.  Thus  it  will  be  observed  that 
these  republics  began  with  relatively  good  principles  and  ex- 
ceptional prosperity  and  ended  in  disaster  and  tyranny.  The 
question  naturally  forces  itself  on  us,  if  the  early  system  is 
the  better,  why  is  it  invariably  followed  by  that  which  is 
worse  ?  Why  does  the  good  perish  and  the  bad  take  its  place  ? 
The  answer  must  be  that  the  early  system  contained  the 
germs  of  its  own  destruction,  and  that  these  germs  grew  and 
gained  strength  at  the  expense  and  ultimately  to  the  exclusion 
of  the  salutary  principles  which  were  dominant  in  the  early 
organization. 

Everywhere  it  will  be  found  that  the  power  of  a  ruling 
oligarchy  has  developed  in  connection  with  the  theory  of  the 
transmission  of  property  by  inheritance.  Probably  the  reason 
why  the  effects  of  laws  of  inheritance  in  developing  a  distinct 
class  are  not  readily  perceived  is,  that  estates  pass  from  father 
to  son,  one  at  a  time,  so  that  there  is  no  time  when  there  is  a 
noticeable  change  in  the  personnel  of  the  oligarchy.  Where 
all  start  poor  and  on  a  substantially  equal  footing,  difference 
in  capacity,  strength,  prudence  and  other  circumstances,  re- 
sults in  the  accumulation  by  some  of  more  property  than  the 
rest.  Perhaps  no  social  or  political  distinction  results  from 
this  difference.  The  feeling  df  fellowship  between  the  richest 
and  poorest  may  continue  through  life.  But  at  the  death  of 
the  wealthy  one  the  estate  passes  by  inheritance  to  a  son  who 
has  done  nothing  to  merit  it.     He  takes  it  with  a  feeling  of 


ITALY  413 

pride  and  superiority  over  the  sons  of  the  poor.  If  possessed 
of  the  requisite  qualities  the  inheritance  he  has  received  adds 
to  his  power  to  acquire  wealth,  and  he  increases  his  holdings. 
His  riches  give  him  distinction  and  naturally  mark  him  as  a 
public  man.  He  is  placed  in  authority  more  or  less  of  the 
time.  At  his  death  an  increased  estate  passes  to  his  heir.  By 
this  time  the  bond  of  sympathy  between  rich  and  poor  is 
broken.  The  son,  whose  ancestors  for  two  or  more  genera- 
tions have  enjoyed  wealth  and  exercised  power,  believes  him- 
self to  be  of  a  superior  class.  He  associates  only  with  those 
of  similar  fortune  and  looks  with  contempt  on  the  poor. 
Starting  with  an  utterly  /false  estimate  of  his  own  deserts,  he 
regards  the  possession  of  property  through  a  law  which  is 
merely  a  human  regulation,  as  due  to  the  special  grace  of  a 
higher  power  and  himself  marked  out  as  superior  to  the  multi- 
tude. Discarding  utterly  the  doctrine  that  individual  merit 
and  desert  rest  solely  on  individual  conduct  and  effort,  he 
makes  a  virtue  of  idleness  and  takes  the  fruits  of  the  laibors 
of  others  without  suspecting  that  justice  would  deny  him  any 
share  of  that  for  which  he  returns  nothing  in  exchange. 
Naturally  the  heirs  of  wealth  associate  mainly  with  those  of 
their  class,  and  by  intermarriages  wealth  is  consolidated  and 
the  interests  of  families  are  combined.  The  history  of  all 
the  Italian  cities  shows  that  through  exactly  this  process  an 
oligarchy  was  established,  based  on  possessions.  Then  came 
jealousies,  rivalries  and  factions.  While  the  poor  may  at 
times  raise  riots  when  bread  is  scarce,  the  idle  rich  spend 
their  time  in  plotting  to  gain  still  greater  prominence  and 
ascendency.  Having  plenty  they  covet  still  more  and  incite 
the  poor,  who  are  dependent  on  them,  to  fight  in  their  interests. 
The  landed  aristocracy  olf  Italy,  like  those  of  other  parts  of 
Europe  in  feudal  times,  based  their  rights  on  grants  from  the 
king  or  emperor.  His  right  to  make  such  grants  generally 
had  its  foundation  in  military  power  and  conquest.  The  shift- 
ing fortunes  of  the  rulers  of  different  states  placed  it  in  the 
power  of  some  one  of  them  at  some  time  to  regard  each  tract 
of  land  as  conquered  territory  to  be  given  to  his  favorite  fol- 
lowers, and  as  to  many  parts  there  were  many  changes  of 
sovereignty. 


414  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Though  the  soil  of  Italy  became  a  bone  of  contention  among 
foreign  and  domestic  princes  and  for  1400  years  was  without 
national  unity,  its  people  still  held  a  commanding  position  in 
many  respects.  The  church  passed  from  being  an  organiza- 
tion to  propagate  religious  faith  and  moral  principles  to  one 
whose  main  aim  was  power  and  mastery.  The  weapons  of 
the  church  were  not  merely  interdicts  and  excommunications, 
but  the  Popes  did  not  hesitate  to  equip  armies  and  fight  bloody 
battles.  Through  the  theory  of  land  titles  the  churches  and 
monastic  societies  became  possessed  of  a  large  proportion  of 
all  the  best  lands  in  Europe.  To  the  revenue  derived  from 
these  was  added  a  great  variety  of  contributions  from  all 
classes  of  people  for  supposed  services,  in  the  collection  of 
which  the  priesthood  became  very  expert.  Schemes  to  gather 
money  were  never  wanting,  and  the  sale  of  indulgences  and 
the  confiscations  of  the  Inquisition  show  to  what  depths  of 
iniquity  the  professed  heads  of  the  Christian  religion  could 
descend.  Most  of  the  people  of  Italy  have  been  poor,  igno- 
rant and  sorely  oppressed  during  most  of  the  time  since  the 
fall  of  the  western  empire,  yet  there  have  always  been  bright 
spots  somewhere.  The  ancient  spirit  of  liberty  and  law  has 
always  lived  in  the  breasts  of  some  of  the  sons  of  the  penin- 
sula, and  from  time  to  time  has  found  expression  in  the  in- 
stitutions of  her  cities.  The  learning  and  arts  of  the  Greeks 
and  Romans  have  never  been  entirely  lost.  Ravenna,  Venice, 
Milan,  Genoa,  Naples,  Florence,  Pisa,  Verona,  Mantua,  Bo- 
logna, Parma,  Pavia,  Siena  and  scores  of  other  cities,  includ- 
ing old  Rome  itself,  have  at  times  exhibited  regard  if  or  justice 
and  the  blessings  of  peaceful  industry  and  beneficial  enter- 
prise. Not  their  wealth,  but  their  inability  to  make  wise  and 
just  disposition  and  distribution  of  it  and  their  jealousy  of 
rivals  have  proved  their  ruin.  The  church  lost  its  hbld  on  the 
consciences  of  men  when  its  main  aims  became  the  gathering 
of  wealth  and  the  increase  of  power.  Though  the  Italian 
cities  severally  were  able  to  accomplish  brilliant  results,  the 
ancient  capacity  for  organization,  which  characterized  Rome, 
was  lacking.  Confederacies  like  that  of  the  Lombard  cities 
might  successfully  resist  a  foreign  aggressor  for  a  time,  but 


ITALY  415 

no  system  was  developed  which  effectually  provided  either  for 
continued  cooperation  against  outside  /foes  or  for  the  determi- 
nation of  controversies  between  the  different  cities  and  their 
citizens  arising-  from  conflicting  interests.  Faction  soon  be- 
came strife,  and  the  utterly  senseless  quarrels  of  Guelphs  and 
Ghibellines  covered  the  streets  of  the  cities  with  the  blood  of 
rival  parties  and  armed  city  against  city  and  state  against 
state.  Conflicting  claims  of  Pope  and  Emperor  to  power  ad- 
ded to  the  turmoil  and  intensified  the  hatred  of  factions.  Fac- 
tional strife  as  usual  resulted  in  the  evolution  of  tyrants,  from 
whom  the  people  hoped  at  least  for  order.  Then  came  the  age 
of  mercenary  soldiers  hired  by  petty  tyrants  to  fight  their 
wars,  of  intrigue  and  deception,  ifor  which  the  statesmen  of 
the  Italian  states  gained  unenviable  notoriety. 

The  fifteenth  century  found  Italy  divided  into  five  states, 
the  kingdom  of  Naples,  the  duchy  of  Milan,  the  Popes  domin- 
ions, and  the  republics  of  Venice  and  Florence.  The  last 
named  cities  held  high  rank  in  commerce  and  domestic  indus- 
tries. This  was  a  period  of  power  for  the  Pope  and  of  Vene- 
tian dominance  on  the  sea.  Then  followed  that  struggle  for 
dominion  in  Italy  between  the  kings  of  Austria,  France  and 
Spain,  with  its  varying  combinations,  always  resulting  in  the 
domination  of  foreign  rulers  over  more  or  less  of  the  country, 
which  lasted  till  recent  times.  Local  dukes  and  princes  were 
for  the  most  part  dependents  on  the  rulers  of  one  or  another  of 
these  great  kingdoms. 

Italy  became  the  field  of  contest  between  Republican  France 
and  despotic  Austria  in  1796,  and  as  a  result  of  Napoleon's 
successes  temporary  republics  were  established.  Later  Napo- 
leon established  his  authority  and  ruled  through  his  representa- 
tives, but  the  congress  of  Vienna  in  181 5  undid  all  his  work 
and  again  divided  Italy  into  petty  states. 

Victor  Emanuel,  whose  ancestors  had  enjoyed  more  or  less 
power  in  Savoy,  Burgundy  and  Lombardy  from  the  tenth 
century,  was  accorded  the  kingdom  of  Sardinia,  including 
Piedmont  and  Genoa.  Austria  held  Venice  and  Milan,  the 
Pope  the  states  of  the  church,  and  the  Bourbon  prince  Ferdi- 
nand Naples  and  Sicily.     Austrian  influence  dominated,  and 


4i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

despotism  in  all  its  odiousness  returned.  In  1820  revolts  oc- 
curred, which  were  soon  suppressed  by  the  combined  forces  of 
Austria,  Great  Britain  and  Bourbon  France.  Trials  of  leaders 
and  persons  obnoxious  to  the  rulers  by  courts  organized  to 
convict  followed,  and  the  hand  of  despotism  put  many  patri- 
ots to  death  as  traitors.  In  1830,  following  the  uprising  in 
Paris,  there  were  outbreaks  in  some  of  the  cities,  which  were 
soon  suppressed.  The  desire  for  Italian  unity  and  'freedom 
spread  not  less  rapidly  for  the  iron  rule  of  the  princes.  The 
advocates  of  a  republic,  though  forced  to  act  in  secrecy,  con- 
tinued their  agitation  and  contrived  to  hold  meetings  ostensi- 
bly for  other  purposes.  The  scientific  congress  professing  to 
be  devoted  to  scientific  research  was  in  fact  a  cover  for  re- 
publican gatherings.  On  the  accession  of  Pius  IX  to  the 
papacy  he  proclaimed  a  general  amnesty  for  political  offenses 
and  sided  with  the  liberals.  In  1847  constitutions  were 
granted  in  Rome,  Piedmont  and  Tuscany.  iVustria  and  Naples 
refused  to  make  concessions,  and  in  1848  a  demonstration  at 
Milan  by  the  liberals  was  made  the  occasion  of  the  slaughter 
of  many  citizens  in  the  streets.  Uprisings  at  Naples  forced 
the  allowance  of  a  constitution  in  1848.  In  response  to  the 
popular  demand  the  king  of  Sardinia  made  war  for  the  libera- 
tion of  the  Austrian  provinces,  but  without  success.  Opposi- 
tion to  the  war  by  the  Pope  caused  an  uprising  at  Rome, 
which  resulted  in  the  temporary  establishment  of  a  republic. 
The  Pope  was  resorted  to  power  by  the  French  in  1849.  The 
dukes  of  Parma,  Modena  and  Tuscany,  who  had  been  scared 
from  their  dominions,  returned  under  Austrian  protection, 
and  the  old  order  of  things  was  restored.  In  1859  France 
came  to  the  aid  of  Sardinia,  and  as  a  result  of  a  brief  cam- 
paign Sardinia  gained  Tuscany,  Modena  and  Prama,  but  at  the 
price  of  the  concession  to  France  of  Savoy  and  Nice.  This 
was  soon  followed  by  a  revolution  in  the  south  of  Italy.  Un- 
der the  lead  of  Garibaldi  Sicily  was  soon  overrun,  and  cross- 
ing to  the  main  land  Naples  was  taken.  In  1861  this  kingdom 
voted  to  be  annexed  to  that  oif  Sardinia,  and  Victor  Emanuel 
was  proclaimed  King  of  Italy.  As  a  result  of  the  Austro- 
Prussian  war,  in  which  the  Italians  took  part  with  the  Prus- 


ITALY  417 

sians,  Venice  was  restored  to  Italy.  The  French  revolution  of 
1870  resulted  in  the  withdrawal  of  French  support  from  the 
Pope,  and  on  the  twentieth  of  September  1870  Victor  Emanuel 
entered  Rome  and  made  it  his  capital,  the  Pope  retaining  the 
Vatican  with  its  dependencies.  In  these  recent  wars  for  the 
liberation  of  Italy  the  republicans  have  been  the  popular  lead- 
ers, and  republican  enthusiasm  has  given  the  energy  which  has 
resulted  in  the  establishment  of  the  present  limited  monarchy. 
The  constitution  is  essentially  that  granted  by  Charles  Albert. 
The  crown  is  hereditary  in  the  male  line  of  the  house  of  Savoy. 
Legislative  power  is  in  the  king  and  parliament,  and  the  king 
on  his  accession  is  bound  to  take  an  oath  in  the  presence  of 
both  chambers,  that  he  will  obey  the  constitution.  His  style 
is  ''by  God's  grace  and  through  the  will  of  the  nation  King  of 
Italy" :  thus  recognizing  the  concurrence  of  divine  and  popu- 
lar will.  The  executive  powers  of  government  are  exercised 
through  a  ministry  responsible  to  parliament,  composed  of 
nine  members  namely.  Foreign  Affairs;  Interior;  Public  In- 
struction; Finance;  War;  Marine;  Grace;  Justice  and  Wor- 
ship ;  Public  Works ;  and  Agriculture,  Industry  and  Commerce : 
The  Senate  consists  of  the  princes  of  the  royal  family  and  an 
undefined  number  of  persons  forty  years  of  age  or  over,  ap- 
pointed by  the  king  from  the  archbishops,  bishops,  ministers, 
high  officials,  admirals,  generals  and  other  persons  of  wealth 
or  distinction.  There  must  be  an  election  of  members  of  the 
chamber  of  deputies  at  least  once  in  five  years.  All  males 
twenty-one  years  of  age  or  over,  who  pay  taxes  to  the  amount 
of  twenty  lire  and  can  read  and  write,  are  allowed  to  vote. 
There  are  508  members  of  the  chamber  of  deputies.  In  1865 
the  whole  kingdom  was  divided  into  sixty-nine  provinces  and 
eight  thousand  five  hundred  and  forty-five  communes,  but 
many  changes  have  been  subsequently  made  in  the  arrange- 
ment. In  each  province  there  is  a  prefect  appointed  by  the 
king  and  a  council  chosen  by  the  same  electors,  which  elects  its 
own  president  and  has  supervision  of  provincial  affairs.  In 
each  commune  there  is  also  a  council  having  charge  of  the  local 
affairs  with  power  of  local  taxation.  The  Italian  government 
is  still  essentially  aristocratic,  but  the  difficulties  with  which 


4i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Italian  statesmen  have  been  confronted  were  very  great.  No 
other  country  included  so  large  a  percentage  of  beggars  and 
idle  poor.  Brigandage  and  lawlessness,  extreme  ignorance, 
religious  bigotry  and  general  incapacity  for  public  affairs, 
prevailed  in  many  localities.  Though  Italian  cities  are  still 
seats  of  learning  and  culture  and  the  homes  of  men  of  a  very 
high  order  of  intelligence,  morals  and  education,  Rome, 
Naples  and  other  cities  contain  great  masses  of  depraved  men 
and  women,  from  whom  little  that  is  good  need  be  hoped  ifor 
at  once. 

In  the  matter  of  education  though  the  government  exhibits 
most  commendable  solicitude,  Italy  is  still  far  behind  most 
European  states.  Each  commune  is  bound  by  law  to  afford 
primary  education  and  attendance  is  made  compulsory,  but 
there  are  still  very  many  places  where  schools  are  not  main- 
tained for  all,  and  many  children  who  do  not  attend.  There 
are  seventeen  national  universities  and  numerous  special 
schools  of  high  order.  The  judicial  system  has  at  its  head 
five  courts  of  cassation,  at  Rome,  Turin,  Florence,  Naples  and 
Palermo.  Below  these  are  twenty-three  courts  of  appeals  in 
the  principal  cities.  The  number  of  courts  of  assize  varies  at 
the  pleasure  of  the  king.  Trials  of  criminal  cases  are  by 
jury,  and  the  death  penalty  is  no  longer  inflicted.  There  are 
one  hundred  and  sixty-two  civil  and  correctional  tribunals, 
and  1813  ipraetors  having  jurisdiction  in  civil  causes  involving 
less  than  1500  lire  and  also  in  criminal  cases.  It  is  a  part  of 
their  duty  to  effect  compromises  of  litigation  without  trial. 
There  are  also  special  judges,  styled  conciliatori,  to  aid  in 
bringing  about  settlements,  and  about  one-fourth  the  causes 
are  said  to  'be  disposed  of  in  this  manner.  The  principles  oif 
the  Roman  law  still  afford  the  basis  of  the  modern  system  of 
Italy,  though  changed  in  many  particulars. 


CHAPTER  XVIII 

Spain  and  Portugal 

Of  the  habits  and  organization  of  the  people  of  Spain  at  the 
time  it  first  became  known  to  the  Greeks  and  Phoenicians  or 
later  to  the  Romans  we  know  very  little.  They  are  mentioned 
as  barbarous  tribes.  The  Phoenicians  were  the  first  to  make 
settlements  and  establish  trading  ports  on  the  coast.  Gades, 
Tartessus  and  Tarraco  are  said  to  have  been  flourishing  towns 
as  early  as  the  seventh  century  B.C.,  Carthage,  itself  a  Phoeni- 
cian colony,  had  acquired  a  kind  of  dominion  over  the  penin- 
sula by  the  time  of  the  first  Punic  war,  264  B.C.,  but  had  not 
succeeded  in  establishing  a  settled  government  over  the  interior 
tribes.  Considerable  progress  was  made  by  Hamilcar  and 
Hasdrubal  in  extending  their  rule  over  the  peninsula  prior  to 
the  second  Punic  war,  but,  beyond  the  facts  that  they  were 
backed  by  strong  armies  and  at  the  same  time  encouraged 
matrimonial  unions  between  their  followers  and  the  natives, 
little  can  be  told  of  the  system  by  which  they  governed.  Dur- 
ing this  war  the  Romans  invaded  Spain,  and  by  205  B.C.  they 
had  taken  the  mastery  of  the  country  out  of  the  hands  of  the 
Carthaginians.  The  process  oif  planting  Roman  colonies  and 
introducing  the  Roman  system  met  with  much  resistance  from 
the  interior  tribes,  and  it  was  not  till  the  time  of  Augustus 
that  the  whole  peninsula  to  the  Pyrenees  became  pacified. 
The  Roman  system  then  became  general,  and  under  it  Spain 
enjoyed  a  marked  degree  of  prosperity  and  exemption  from 
war  for  nearly  three  hundred  years,  though  sorely  oppressed 
by  the  tax  gatherers. 

Under  Augustus  Spain  was  divided  into  three  provinces, 
Boetica  in  the  southeast  with  Corduba  for  its  capital,  Lusi- 
tania,  corresponding  to  modern  Portugal,  of  which  Emerita 
Augusta  was  the  capital,  and  Tarraconensis,  covering  all  the 
remainder,  with  Tarraco  for  its  capital.     Of  these  Boetica, 

419 


420  EVOLUTION  OF  GOVERNMENTS  AMD  LAWS 

the  most  orderly  and  thoroughly  Romanized,  was  a  senate 
province,  and  the  other  two  were  imperial  provinces,  of  which 
the  Emperor  named  the  governors.  The  whole  peninsula  was 
divided  into  fourteen  conventuSj  each  made  up  of  a  combi- 
nation of  communities  within  the  district,  and  having  a  chief 
town  at  which  justice  was  administered.  In  the  time  of  Ves- 
pasian 360  towns  are  enumerated,  including  those  having  the 
'full  Roman  franchise,  those  having  the  inferior  franchise,  the 
colonia,  and  the  tributary  towns,  on  the  inferior  classes  of 
which  he  conferred  Latin  rights.  Spain  became  one  of  the 
most  thoroughly  Latinized  of  all  the  Roman  provinces,  and 
all  the  characteristics  of  Roman  civilization  were  developed 
throughout  the  peninsula.  The  vine  and  the  olive  were  suc- 
cessfully planted,  and  agriculture  flourished.  The  rich  mines 
were  opened,  and  the  working  of  metals  and  weaving  of 
fabrics  were  industriously  followed.  Latin  became  the  lan- 
ugage  of  the  country,  and  among  its  sons  the  two  Senecas, 
Lucan,  Florus  and  Martial,  were  types  of  philosophers  and 
poets  of  high  order.  In  politics  Spain  can  boast  of  having 
produced  a  Trajan  and  a  Hadrian,  who,  during  ?forty  of  the 
best  years  the  Roman  empire  ever  knew,  directed  its  affairs. 
The  first  great  shock  came  in  256,  when  the  Franks  passed 
the  Pyrenees  and  spread  destruction  over  the  peninsula.  Tar- 
ragona was  sacked  and  almost  destroyed,  and  for  twelve  years 
the  rich  provinces  were  desolated  and  scourged  by  the  bar- 
barous invaders.  After  this  storm  another  era  of  peace  and 
prosperity  followed  till  409.  Contemporaneous  with  the  sack- 
ing of  Rome  by  Alaric,  a  tide  of  Suevi,  Alani  and  Vandals 
swept  over  the  country  and  desolated  it.  About  414  a  Visi- 
gothic  horde  under  Ataulphus  and  as  an  ally  of  Rome  entered 
the  country.  Soon  afterward  Ataulphus  was  murdered  and 
his  successor  Walia  made  a  treaty  with  the  Emperor  Honorius, 
by  which  he  nominally  acknowledged  the  imperial  sovereignty, 
and  thereafter  proceeded  to  subdue  the  Suevi,  Alani  and  Van- 
dals. Although  he  was  able  to  extend  his  authority  over  most 
of  the  peninsula,  he  was  not  able  to  thoroughly  subdue  these 
tribes,  and  for  many  years  there  was  warfare  between  the 
Romanized  Goths  and  the  German  tribes.      About  429  the 


SPAIN  AND  PORTUGAL  421 

Vandals,  led  by  their  king  Genseric,  passed  into  Africa  and 
established  their  dominion  there.  Under  Euric,  466  to  485, 
the  Gothic  state  was  extended  over  a  large  part  of  Gaul,  and 
the  seat  of  government  established  at  Bordeaux.  Euric  was  a 
legislator  as  well  as  a  warrior,  and  he  caused  to  be  collected 
and  embodied  into  a  written  code  the  ''Customs  af  the  Goths." 
His  successor  Alaric  II  caused  the  work  to  be  revised  and  en- 
larged by  civil  lawyers,  incorporating  many  of  the  principles 
of  Roman  civil  and  ecclesiastical  law.  Roman  sovereignty 
gradually  gave  way  even  in  name  to  the  actual  rule  of  the 
Goths.  The  Gothic  dominion  soon  yielded  north  of  the  Pyre- 
nees to  that  of  the  Franks,  but  continued  in  Spain  with  many 
wars  and  frequent  domestic  upheavals  till  the  advent  of  the 
Saracens  in  711.  Under  the  Goths  the  people  were  ruled  by 
an  elective  monarch  and  an  hereditary  aristocracy,  represent- 
ing the  temporal  power,  and  by  the  church,  which  soon  gained 
a  predominant  influence  in  the  state.  Bigotry,  persecution  and 
the  inquisition,  exhibited  their  barbarities,  and  by  their  side 
the  Christian  doctrine  of  the  equality  of  all  men  before  the 
law  found  place  in  their  code.  The  barbarisms  of  valuing 
men's  lives  according  to  rank,  of  judicial  combat  and  trial  by 
ordeal,  were  unknown.  The  succession  to  the  Gothic  throne 
was  often  contested,  and  many  occupants  of  it  if  ell  by  the 
hands  of  assassins.  Here  as  elsewhere  the  dangers  of  wearing 
a  crown  failed  to  deter  men  from  seeking  the  coveted  prize. 
The  Goths  were  Arians,  though  the  major  part  of  the  Spanish 
population  adhered  to  the  orthodox  faith.  In  the  latter  part 
of  the  sixth  century  King  Ricared  adopted  the  Catholic  faith 
and  proceeded  vigorously  and  successfully  with  the  conversion 
of  his  subjects.  From  that  time  forth  Spain  became  the  most 
reliable  of  Catholic  states.  Religious  zeal,  whetted  possibly 
by  the  known  wealth  of  the  Jews,  who  dwelt  in  Spain  in  great 
numbers,  caused  their  cruel  and  bloody  persecution  and  a 
decree  (for  the  expulsion  of  the  last  of  them  from  the  country 
at  the  time  when  the  Mohammedan  power  was  spreading  over 
northern  Africa. 

The  Jews  invited  the  Saracens  to  invade  Spain,  but  it  can 
hardly  be  said  that  their  encouragement  was  the  cause  of  the 


422  EVOLUTION   OF  GOVERNMENTS  AN!D  LAWS 

invasion.  In  711  Tarik  with  5,000  men  landed  at  Gibraltar, 
This  force  was  inadequate  to  the  task  before  it,  and  Tarik 
wisely  awaited  reinforcements  before  hazarding  a  decisive 
battle.  Having  received  large  accessions  to  his  force  both 
from  Africa  and  from  Disaffected  subjects  of  Spain,  he 
marched  out  and  destroyed  the  army  of  King  Roderic  in  a 
long  and  hard  fought  battle,  in  which  the  tide  was  turned  by 
the  treachery  of  a  part  of  Roderic's  army.  Tarik  at  once  took 
advantage  of  his  success  and  quickly  overran  the  country.  A 
state  which  it  had  taken  the  Romans  two  centuries  to  subdue 
was  overrun  and  reduced  by  the  Saracens  in  a  few  months. 
The  rapid  success  of  the  Mohammedan  armies  in  Spain,  as 
elsewhere  in  the  early  days  of  religious  zeal,  was  largely  due 
to  the  superior  treatment  by  them  of  conquered  people.  The 
alternative  of  the  "sword,  the  tribute  or  the  Koran"  offered 
to  those  capable  of  adapting  their  beliefs  to  their  material 
interests  an  easy  escape  from  all  oppression,  and  even  when  the 
tribute  was  imposed,  it  was  a  more  moderate  burden  than 
many  of  the  Christian  rulers  placed  on  their  subjects.  An 
example  of  this  is  given  in  the  terms  of  the  capitulation  of 
Theodomir  to  Abdelazis  after  a  stubborn  resistance. 

'Tn  the  name  of  the  most  merciful  God,  Abdelazis  makes 
peace  on  these  conditions,  that  Theodomir,  shall  not  be  dis- 
turbed in  his  principality,  nor  any  injury  be  offered  to  the 
life  or  property,  the  wives  and  children  the  religion  and  tem- 
ples of  the  Christians  .  .  .  that  he  shall  not  assist  nor  enter- 
tain the  enemies  of  the  Caliph,  but  shall  faithfully  communicate 
his  knowledge  of  their  hostile  designs,  that  himself  and  each 
of  the  Gothic  nc^bles  shall  annually  pay  one  piece  of  gold,  four 
measures  of  wheat,  as  many  of  barley,  with  a  certain  propor- 
tion of  honey,  oil  and  vinegar,  and  that  each  of  their  vassals 
shall  be  taxed  at  one  moiety  of  said  imposition."  This  was 
dated  in  the  ninety-fourth  year  of  the  Hegira. 

Not  content  with  the  possession  of  Spain,  the  Saracens 
passed  the  Pyrenees  and  overran  the  southern  part  of  Gaul, 
till  their  crusfhing  defeat  near  Tours  in  732  by  the  Franks 
under  Charles  Martel  put  a  definite  end  to  their  encroach- 
ments. By  759  they  abandoned  all  possessions  beyond  the 
Pyrenees. 


SPAIN  AND  PORTUGAL  423 

The  struggle  for  the  mastery  of  the  Mohammedan  world 
carried  on  in  the  east  resulted  in  the  overthrow  of  the  Omay- 
ads  and  the  destruction  of  the  members  of  the  royal  house- 
hold, except  Abd-al-Rahman,  who  effected  his  escape  to  Spain, 
where  he  was  warmly  welcomed  and  after  a  struggle  with  the 
Abbasid  adherents  succeeded  in  establishing  his  authority. 
Though  he  and  his  immediate  successors  assumed  the  modest 
title  of  emir,  all  connection  with  the  Caliphate  was  in  fact 
severed  and  the  independence  of  Spain  was  maintained.  Un- 
der Abd-al-Rahman  a  struggle  for  mastery  against  opposing 
factions  aided  by  the  then  overshadowing  power  oif  the  Franks 
resulted  in  the  firm  establishment  of  his  power  and  a  long  era 
of  peace,  during  which  the  schools  of  Cordova  took  high 
rank,  and  the  study  of  mathematics,  astronomy,  medicine  and 
kindred  sciences  was  carried  to  the  highest  stage  anywhere 
attained  at  that  time.  His  descendants,  who  succeeded  him 
in  authority,  left  notable  monuments  of  the  wealth  produced 
by  the  skill  and  industry  of  the  people.  The  elegances  of 
eastern  civilization  and  the  public  utilities  of  roads,  bridges 
and  aqueducts,  so  characteristic  of  the  Roman  provinces,  were 
exhibited  in  city  and  country  in  forms  which  have  excited  the 
wonder  and  admiration  of  later  generations.  To  clearly  com- 
prehend what  is  sometimes  called  Moorish  civilization  it  must 
be  borne  in  mind  that  the  Mohammedans  merely  imposed  their 
own  authority  and  civilization  on  that  which  they  found  in 
Spain  on  their  arrival.  The  country  was  not  cleared  of  its 
ancient  inhabitants,  but  the  descendants  of  Phoenicians,  an- 
cient tribes,  Greeks,  Romans  and  Germanic  tribes  still  in- 
habited it  and  constituted  a  great  majority  of  the  population. 
In  agriculture  the  Roman  system  prevailed.  In  trade  Jews 
as  well  as  Romans  played  an  important  part.  In  the  arts  and 
sciences  the  rulers  wisely  encouraged  men  of  skill  and  learning 
from  all  parts  of  the  world  to  teach  as  well  as  to  labor  among 
their  people.  The  wealth  of  Spain  was  not  alone  in  gold, 
silver  and  the  works  of  laborers'  hands,  but  in  knowledge  as 
well,  and  Cordova  could  boast  of  its  library  of  600,000  vol- 
umes. The  prosperity  of  Spain  under  the  Omayad  dynasty 
illustrates  the  advantages  of  combining  different  civilizations 


424  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  a  proper  spirit.  The  Arabs  and  their  eastern  followers 
brought  with  them  the  arts  and  acquirements  of  the  east, 
which  were  added  to  the  Roman  civilization  which  preceded 
them.  Each  profited  from  the  peculiar  knowledge  of  the 
other,  and  each  was  stimulated  to  better  effort  in  useful  call- 
ings. But  the  Omayads  also  brought  with  them  the  seeds  oif 
the  destruction  of  their  empire.  Religious  bigotry,  polygamy, 
the  seclusion  of  women,  and  a  despotic  theory  of  government, 
worked  out  their  natural  results.  How  false  the  life  of  a 
typical  oriental  potentate  is  was  pathetically  expressed  by 
Abd-al-Rahman  III  who  ruled  from  912  to  961,  and  under 
whom  the  height  of  oriental  magnificence  was  maintained,  in 
a  memorial  in  which  he  said,  "I  have  now  reigned  above  fifty 
years  in  victory  or  peace,  beloved  by  my  subjects,  dreaded  by 
my  enemies,  and  respected  by  my  allies.  Riches  and  honors, 
power  and  pleasure  have  awaited  on  my  call,  nor  does  any 
earthly  blessing  appear  to  have  been  wanting  to  my  felicity. 
In  this  situation  I  have  diligently  numbered  the  days  of  pure 
and  genuine  happiness  which  have  fallen  to  my  lot;  they 
amount  to  fourteen.  O  man!  place  not  thy  confidence  in  this 
present  world."  Like  most  others  in  similar  station  he  failed 
to  comprehend  his  own  vices,  and  that  he  daily  transgressed 
the  laws  of  healthy  life.  In  his  multitude  of  secluded  ignorant 
women  he  lacked  a  worthy  wife.  In  the  abundance  of  the 
fruits  of  the  labors  of  others  with  which  his  wants  were  sup- 
plied he  lost  the  healthy  relish  which  comes  from  useful  effort. 
In  the  exercise  of  despotic  power  over  the  lives  and  for- 
tunes of  others  he  was  not  disciplined  by  the  salutary  resis- 
tance which  the  freely  expressed  judgments  of  others  of  equal 
capacity  afford.  Most  of  all,  in  his  exalted  station  he  lacked 
the  sympathy  and  (fellowship  of  others.  Of  the  brotherhood 
of  man  he  had  no  comprehension,  and  without  it  he  could  not 
realize  the  fatherhood  of  God. 

The  Mohammedans,  having  extended  their  dominion  over 
all  the  rich  provinces  of  Spain,  allowed  a  remnant  of  the 
Goths  to  take  refuge  in  the  mountainous  district  of  the  north- 
west. There  Pelayo  and  a  few  hardy  followers  preserved 
their  independence.     Christians  who  preferred  the  hard  life 


SPAIN  AND  PORTUGAL  425 

of  the  mountains  to  submission  to  Moslem  rule  in  more  genial 
districts,  joined  them,  and  thus  the  little  state  grew.  Alfonso, 
the  grandson  of  Pelayo,  extended  his  possessions  over  Galicia, 
and  his  son  fixed  his  capital  at  Oviedo.  Though  in  name 
Christians,  the  Visigoths  were  still  warriors  whose  principal 
employment  was  fighting  the  Mohammedans  and  each  other. 
Succession  to  the  throne  of  the  petty  state  was  oiften  the  oc- 
casion of  internal  discord,  and  the  record  of  assassinations 
and  fratricidal  wars  for  the  throne  is  similar  to  that  of  other 
kingdoms  of  that  time.  By  the  end  of  the  eighth  century  the 
kingdom  of  Oviedo  was  fairly  well  established  and  had  de- 
feated the  Moslems  in  several  great  battles. 

In  801  Charlemagne  extended  his  power  into  the  northeast 
of  Spain  and  established  a  mark  there,  over  which  the  Count 
of  Barcelona  ruled  as  representative  of  the  Prankish  Emperor. 
On  the  breaking  up  of  the  Empire  the  district  olf  Catalonia 
was  subject  to  frequent  transfers  of  sovereignty,  being  some- 
times under  a  local  ruler  and  at  others  subject  to  Gaulic  kings. 
About  900  Sancho  founded  the  kingdom  of  Navarre,  in  the 
district  in  which  the  ancient  Basques  had  taken  refuge  from 
the  invaders,  and  into  which  later  the  Suevi  withdrew  before 
the  Visigoths.  The  possessions  of  the  kings  of  Oviedo  were 
extended  into  Leon  and  Castile,  and  Sancho  the  great  of 
Navarre  extended  his  rule  over  Aragon.  The  German  custom 
of  dividing  kingdoms  as  a  patrimony  among  the  sons  pre- 
vailed, and  the  number  of  separate  states  depended  on  the 
number  of  sons  ai  the  kings  and  the  success  of  one  in  taking 
the  share  of  another  by  fraud  or  force.  Thus  the  states  of 
Leon,  Castile  and  Aragon  were  formed.  The  mixed  popula- 
tion of  that  part  of  Spain  still  held  by  the  Arabs  and  the  con- 
flicting religious  beliefs  and  priestly  leaderships  were  a  source 
of  never  ending  trouble  to  the  rulers.  The  ninth  century  was 
a  period  of  disorder,  revolts  and  divided  authority  throughout 
the  Mohammedan  dominions,  but  much  the  same  conditions 
prevailed  among  the  Christians,  and  they  neglected  the  op- 
portunities which  the  times  afforded  for  the  expulsion  of  the 
Mohammedans.  Abd-al-Rahman  III  ascended  the  throne  of 
Cordova  in  912  and  assumed  the  title  of  caliph.     Though  he 


426  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

did  not  succeed  in  establishing  his  sovereignty  over  the  Chris- 
tian districts  in  the  northern  portion  o'f  the  peninsula,  such 
was  his  success  in  encouraging  trade,  agriculture  and  manu- 
factures, that  the  country  enjoyed  unexampled  prosperity, 
and  his  revenues  were  sufficient  to  enable  him  to  maintain  an 
efficient  army  and  navy  and  to  annually  devote  vast  sums  to 
the  construction  of  public  works  and  buildings.  Of  all  the 
rulers  of  his  time  he  expended  most  of  the  money  taken  from 
his  subjects  by  taxations  for  their  education  and  for  aque- 
ducts, bridges,  roads  and  other  objects  really  beneficial  to 
them.  The  century  following  the  accession  of  Abd-al-Rah- 
man  III  to  the  throne  was  the  golden  age  of  the  Mohamme- 
dan dominion.  In  the  early  part  of  the  eleventh  century  the 
state  fell  into  disorder  and  civil  war,  and  in  1031  by  the 
abdiction  of  Hisham  III  the  Omayad  dynasty,  which  had 
ruled  for  three  hundred  years,  came  to  an  end ;  all  central 
authority  ceased  and  the  state  was  split  into  disorderly  ifrag- 
ments.  It  is  noteworthy  that  under  these  conditions  the  larg- 
est and  most  enlightened  cities,  the  great  seats  of  learning 
and  the  arts,  Cordova  and  Seville,  were  organized  as  republics. 
Following  the  fall  of  the  Omayad  dynasty  there  was  a 
period  of  great  discord  and  disorder  in  the  Moslem  districts, 
and  the  Christians  made  a  substantial  acquisition  of  territory. 
Among  Mohammedans  and  Christians  alike  most  of  the  civil 
strife  and  bloodshed  resulted  from  the  ambitions  of  the  no- 
bility and  the  descendants  of  princes.  The  thirst  for  power 
was  their  dominant  passion;  wars  against  those  nearest  in 
blood  were  common,  and  treachery  and  assassination  of  broth- 
ers and  other  near  relatives  not  infrequent.  Those  whom  the 
people  followed  led  them  to  destruction.  Rulers  were  rarely 
actuated  by  any  motive  of  duty  or  public  service,  but  usually 
the  sole  object  oif  each  was  to  aggrandize  himself.  The  strug- 
gle between  the  followers  of  the  two  religions  was  not  less 
mercenary,  but  had  the  added  force  of  the  desire  for  priestly 
dominion  on  either  side,  and  the  warriors  were  stimulated  to 
risk  their  lives  under  promise  of  a  sure  reward  in  a  life  to 
come,  each  side  equally  confident  that  his  God  was  the  true 
God  and  that  he  fought  against  infidelity  and  falsehood. 


SPAIN  AXD   PORTUGAL  427 

In  the  time  of  Gregory  VII  the  Christians  of  Spain,  who 
had  been  somewhat  isolated,  adopted  the  ritual  of  the  Roman 
church  and  thenceforth  became  the  most  servile  of  its  fol- 
lowers. The  successes  oif  the  Christians  induced  the  emir 
of  Seville,  then  the  most  powerful  of  the  Moslem  princes,  to 
call  to  his  aid  Yussef,  the  king  of  the  Almoravids,  who  ruled 
over  a  vast  African  empire  with  Morocco  as  his  capital.  In 
response  the  king  came  with  a  strong  army,  and  Alfonso  VI 
of  Castile,  aided  by  the  King  of  Aragon  and  Count  of  Barce- 
lona, was  defeated  in  a  great  battle  at  Zallaka  in  1086.  Hav- 
ing been  recalled  to  Africa  by  the  death  of  his  son,  Yussef 
again  crossed  into  Spain  in  1090,  and  by  the  end  of  the  century 
all  the  ]\Iohammedan  districts  oif  Spain  were  united  under  the 
rulership,  not  of  a  Spanish  prince,  but  of  the  King  of  Mo- 
rocco. Alfonso  VI  of  Castile  had  extended  his  power  to  such 
extent  as  to  assume  the  title  of  emperor  of  Spain,  but  before 
his  death  the  Moorish  power  curtailed  his  dominions.  There- 
after his  ambitious  daughter  Urraca  warred  with  her  husband 
Alfonso  of  Aragon,  and  as  the  result  Alfonso  ruled  Aragon 
and  Navarre  and  her  son  by  her  first  husband,  as  Alphonso 
VII,  ruled  Castile,  Leon  and  Galicia.  In  this  age  of  crusades 
Spain  also  had  its  crusading  orders,  formed  to  fight  the  infi- 
dels, the  Calatrava  ^founded  in  11 58,  that  of  St.  James  Compo- 
stella  in  11 75  and  of  Alcantra  in  11 76.  In  the  kingdom  of 
Portugal,  which  grew  rapidly  in  the  twelfth  century,  there 
was  the  order  of  the  Evora.  In  Africa  Abd-al  Mu  min,  as 
leader  of  the  sect  of  Almohades,  overthrew  the  empire  of  the 
Almoravids  and  then  crossed  into  Spain.  The  Spanish  Almo- 
ravids called  to  their  aid  the  Christian  kings  of  Castile  and 
Aragon,  but  their  combined  forces  were  unable  to  cope  with 
the  victorious  Moors,  and  a  second  Moorish  rulership  was 
imposed  on  the  fairest  part  of  Spain.  The  feuds  and  dissen- 
sions in  the  Christian  states  gave  the  Moors  a  respite  from 
danger  ifrom  that  quarter,  but  a  revolt  of  the  Almoravids  in 
1 199  was  followed  by  five  years  of  civil  strife,  and  soon  after- 
wards a  confederation  of  the  kings  of  Castile,  Aragon,  Leon, 
Navarre  and  Portugal,  was  effected,  mainly  through  the  in- 
fluence of  the  Pope  and  clergy,  and  on  July  16,  12 12  in  the 


428  EVOLUTION  OF  GOVERNMENTS  AN©  LAWS 

great  battle  of  Las  Navos  de  Tolosa  the  Moors  sustained  a 
defeat  from  which  they  never  recovered.  The  old  Arab 
leaders  gave  way  in  the  district  still  held  by  the  Moslems  to 
the  Moorish  element,  which  thereafter  dominated.  In  1230 
Castile  and  Leon  were  united  under  Ferdinand  III,  who  ex- 
tended his  possessions  at  the  expense  of  the  Moslems,  captur- 
ing Cordova  and  Seville,  their  chief  cities,  and  others  oif  less 
importance  including  Cadiz.  During  the  same  period  the 
king  of  Aragon  extended  his  dominions  over  the  Moorish 
possessions  in  the  Balearic  Islands,  Valencia  and  Murcia,  so 
that  by  1266  the  Moors  were  confined  to  Granada.  By  this 
time  Portugal  had  acquired  substantially  the  same  territory 
it  now  possesses.  Though  reduced  within  such  narrow  terri- 
tories, the  Moorish  state,  which  had  been  reduced  to  a  homo- 
geneous population,  continued  without  material  change  in  its 
dimensions  for  more  than  two  centuries.  Its  history  is  one 
of  struggles  of  aspirants  for  power  with  each  other,  of  dis- 
sension and  civil  war,  with  occasional  collisions  with  the  Chris- 
tians, as  well  as  alliances  at  times. 

The  organization  of  society  in  the  states  of  Castile  and 
Aragon,  which  had  now  taken  most  prominent  place  in  Spain, 
was  similar  to  that  of  many  other  states  in  which  Germanic 
elements  were  dominant,  though  modified  somewhat  by  re- 
ligious and  local  influences.  The  power  of  the  King  of  Cas- 
tile was  not  absolute.  The  cortes,  which  originally  was  a 
meeting  of  the  great  nobles  and  royal  household,  in  11 62 
admitted  to  membership  deputies  from  the  cities,  who  at  first 
were  elected  by  vote  oif  all  free  citizens  and  afterward  by  the 
city  magistrates.  The  national  assembly  of  the  cortes  was 
made  up  of  three  estates,  the  clergy,  nobles  and  representatives 
of  the  towns,  who  deliberated  separately  at  times  and  as  one 
body  at  others.  The  two  first  named  orders  were  exempt  from 
taxation.  The  feudal  system  took  root  in  Christian  Spain. 
The  nobles  exercised  judicial  powers  in  their  domains,  and  the 
bishops  and  higher  clergy  decided  causes  within  their  juris- 
diction in  accordance  with  the  laws  of  the  church.  The  nobles 
and  towns  exercised  the  right  of  forming  confederations  for 
the  protection  of  their  rights  by  force,  and  the  actual  admin- 


SPAIN  AND   PORTUGAL  429 

istration  of  government  was  mainly  local  under  the  clergy, 
nobles  and  town  authorities.  Grants  of  taxes  were  made  by 
the  cortes,  and  in  these  matters  at  times  only  the  third  order, 
who  represented  taxpayers,  were  allowed  to  participate. 

The  constitution  of  Aragon  was  still  more  restrictive  df 
the  kingly  power.  The  cortes  consisted  of  four  estates,  the 
great  nobles,  the  equestrian  order,  the  clergy  and  the  represen- 
tatives of  the  towns.  The  concurrence  of  all  was  essential  to 
the  passage  of  a  law,  and  they  exercised  the  right  of  super- 
vision over  the  administration  of  justice  and  the  expenditures 
of  public  moneys.  The  cortes  assembled  once  in  two  years, 
and  the  king  had  no  power  to  dissolve  it.  A  most  important 
officer  was  the  justisa^  appointed  by  the  king  from  the  eques- 
trian order.  He  could  be  removed  only  by  the  cortes,  to  whom 
alone  he  was  accountable  for  his  official  conduct.  His  person 
was  sacred,  and  he  was  the  supreme  interpreter  of  the  laws. 
He  could  call  the  king's  ministers  to  account  and  even  dis- 
miss them  from  office  for  misconduct.  Through  him  the  oath 
of  allegiance  was  expressed  on  behalf  of  the  barons  in  the 
following  form:  "We  who  are  each  of  us  as  good  as  you, 
and  who  are  altogether  more  powerful  than  you,  promise 
obedience  to  your  government  if  you  maintain  our  rights  and 
liberties,  but  not  otherwise."  The  cortes  was  not  the  law-mak- 
ing power  but  the  supreme  court  of  justice,  presided  over  by 
the  jiistiza.  The  office  gained  dignity  and  power  from  the 
appointment  of  men  of  exceptional  character  and  ability,  who 
exercised  a  marked  influence  on  the  affairs  of  the  state. 
Though  the  kingdom  of  Aragon  by  12 13  included  Catalonia 
and  Valencia,  each  of  these  provinces  had  its  separate  cortes 
and  was  governed  in  accordance  with  its  own  laws,  to  which 
the  people  jealously  adhered.  The  great  nobles,  in  accordance 
with  the  feudal  customs  of  the  times,  waged  private  wars  and 
demanded  their  shares  df  all  conquests  made  by  the  state. 
The  constitution  of  the  cortes  in  Valencia  and  Catalonia  was 
essentially  the  same  as  in  Castile,  having  but  three  orders. 

Alfonso  X  of  Castile,  who  came  to  the  throne  in  1252, 
caused  a  code  of  laws  to  be  prepared,  based  on  the  civil  and 
canon  laws,  called  the  Siete  Partidas,  but  the  adoption  of  it 


430  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

by  the  cortes  was  not  effected  till  1348,  long  after  his  death. 
The  history  of  Castile  from  the  time  of  Alfonso  X  to  the 
union  with  Aragon  is  similar  in  its  leading  particulars  to  that 
of  other  European  states  where  the  feudal  system  prevailed. 
The  kings  and  great  nobles,  instead  of  preserving  the  general 
peace  by  their  wisdom  and  moderation,  were  turbulent,  con- 
tentious and  often  cruel.  Civil  war  often  followed  the  demise 
of  the  king  between  factions  supporting  opposing  claimants 
to  the  crown.  When  the  crown  was  not  an  available  pretext 
for  war,  the  jealousies  and  rivalries  of  the  nobles  afforded 
other  pretexts  for  bloody  strife.  Neighboring  kingdoms  also 
came  in  for  their  shares  of  the  horrors  of  war,  and  during 
this  period  the  Christian  kings  caused  their  subjects  to  war 
with  each  other  quite  as  much  as  with  the  followers  of  the 
Prophet.  In  Spain  as  elsewhere  in  Europe  the  great  nobles 
imposed  a  check  on  the  power  of  the  kings,  which  at  times 
was  reduced  to  little  more  than  a  shadow.  The  towns  also 
preserved  some  measure  of  independence,  but  by  taking  the 
choice  of  delegates  to  the  cortes  from  the  mass  of  citizens 
and  vesting  it  in  the  magistrates  popular  influence  was  greatly 
restricted  and  the  opportunity  for  corrupt  influences  corre- 
spondingly increased.  Throughout  the  country  districts  of 
Castile  the  rule  of  the  nobles  was  despotic  and  the  condition 
of  the  common  people  that  of  serfs. 

In  Aragon  there  was  far  more  of  genuine  restriction  on 
arbitrary  power.  The  king  was  even  less  potent  than  in  Cas- 
tile, and  the  justi:::a  and  cortes  gave  the  townsmen  and  common 
people  some  measure  of  protection.  In  Catalonia  there  was 
much  genuine  republican  spirit.  Still  in  Aragon  the  nobles 
through  the  theory  of  ownership  of  the  land  retained  con- 
trol of  the  face  of  the  earth  and  dictated  to  the  multitude  the 
terms  on  which  they  might  live.  Aragon  had  its  written 
fundamental  law,  in  1283,  called  the  "General  Privilege," 
which  placed  limitations  on  the  powers  oif  the  king  and  con- 
tained substantial  provisions  to  secure  the  citizens  against 
arbitrary  power,  but  it  was  far  from  an  effectual  protection 
for  the  common  people.  In  1287  Alfonso  III  signed  what  is 
termed  the  'Triviles^e  of  Union,"  which  allowed  the  subjects 


SPAIN  AXD   PORTUGAL  431 

to  take  up  arms  against  the  king  if  he  attempted  to  infringe 
their  Hberties.  Pedro  IV  revoked  it  in  1348  after  putting 
down  a  serious  revoh.  While  doing  this  he  swore  to  respect 
the  personal  and  political  liberties  of  his  subjects.  Through 
the  claims  of  its  rulers  to  the  throne  of  Sicily,  Naples  and 
Sardinia,  Aragon  became  involved  in  foreign  politics  and 
wars,  and  while  the  King  of  Aragon  for  a  time  ruled  also 
over  portions  of  Italy,  no  close  union  df  the  detached  terri- 
tories was  effected,  but  each  retained  its  customs  and  laws. 
In  the  thirteenth  and  fourteenth  centuries  the  kingdom  of 
Navarre  was  more  closely  connected  with  France  than  with 
"Spain.  Through  various  alliances  of  its  reigning  house  with 
other  rulers  there  were  frequent  changes  in  its  rulership  and 
territorial  connections.  In  the  fourteenth  century  by  the  mar- 
riage of  John  of  Gaunt  and  Edmund  of  York  to  daughters  of 
Pedro,  King  of  Castile,  claims  to  the  Castilian  throne  arose, 
which  brought  English  troops  into  the  peninsula,  and  alli- 
ances with  the  French  king  shifted  according  to  the  prevail- 
ing influences  of  the  time.  The  dreary  details  of  intrigues  and 
wars  in  the  interest  of  contending  princes  are  so  similar  in 
their  essence  that  it  seems  altogether  idle  to  ifollow  them. 
While  a  victorious  leader  may  gain  a  name  and  be  called  a 
hero,  the  net  result  of  the  strife  is  always  misery,  woe  and 
death  to  the  multitude. 

The  kingdom  of  Portugal  developed  from  the  fief  of  Terra 
Portucalensis,  which  Alfonso  VI  of  Castile  conferred  on 
Henry  of  Burgundy  in  1094.  Its  independence  dates  from 
the  reign  of  Alfonso  Henriques,  renowned  as  a  crusader 
against  the  Moslems.  He  reigned  from  1 128  to  11 85.  In  his 
wars  he  received  some  aid  by  Templars  and  crusaders  from 
Germany,  Flanders  and  England.  Alifonso  II  (1211  to  1223) 
summoned  the  first  Portuguese  parliament,  which  was  con- 
stituted of  high  church  officials  and  nobles.  The  feudal  sys- 
tem prevailed  there  at  that  time,  and  the  church  had  extended 
its  possessions  to  such  extent  as  to  induce  Alfonso  to  propose 
a  statute  of  mortmain,  prohibiting  further  acquisition  of 
church  lands.  Under  Alfonso  III  the  boundaries  of  Portugal 
were  extended  to  include  substantially  its  present  territory. 


432  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  in  1254  he  summoned  a  cortes,  in  which  representatives 
of  the  cities  were  admitted  to  sit  with  the  clergy  and  nobles. 
While  Alfonso  received  from  the  city  representatives  the  aid 
he  anticipated  in  his  contests  with  the  clergy,  on  the  other 
hand  they  denounced  his  tampering  with  the  coinage  and 
compelled  recognition  of  their  control  over  the  levy  of  taxes. 
John  I  who  came  to  the  throne  by  the  choice  of  the  cortes, 
concluded  an  alliance  with  England,  and  in  1385  John  of 
Gaunt  aided  him  in  his  war  with  Castile  with  an  army  df 
5,000  Englishmen.  His  reign  witnessed  the  increase  of  the 
possessions  and  power  of  the  great  nobles  by  grants  of  lands. 
In  the  fifteenth  century  the  Portuguese  took  the  lead  in  nauti- 
cal explorations  and  extended  their  voyages  along  the  coast 
of  Africa. 

In  1485  Bartholomew  Dias  rounded  the  Cape  of  Good 
Hope,  and  in  1497  Vasco  Di  Gama  reached  India  by  way  of 
the  cape.  The  Portuguese  promptly  took  advantage  of  these 
discoveries,  and  in  1 505  Almeida  was  sent  as  viceroy  to  India. 
In  1520  Magellan,  a  Portuguese  in  the  Spanish  service,  sailed 
through  the  straits  at  the  extremity  of  South  America  into 
the  Pacific  Ocean.  The  foreign  trade,  which  developed  in 
consequence  of  these  discoveries,  brought  rapid  increase  of 
wealth,  but  it  also  brought  the  poison  of  African  slavery. 
The  lands,  especially  in  the  south,  were  cultivated  by  black 
slaves.  Though  John  II  in  1484  had  broken  the  power  df  the 
feudal  lords  by  the  drastic  remedy  of  putting  about  eighty  of 
the  leading  ones  to  death,  the  evils  of  a  state  made  up  of  a 
few  masters  and  many  slaves  rapidly  developed  along  with 
the  increased  wealth.  Bigotry  was  not  confined  to  Spain, 
and  in  1536  the  Inquisition  was  introduced  into  Portugal 
with  the  same  cruel  and  disasterous  results  as  in  Spain.  The 
material  advantages  acquired  by  the  discoveries  of  her  sea- 
men were  not  preserved  to  the  nation.  Corruption  in  of^cial 
stations,  especially  in  the  colonial  governments,  and  emigra- 
tion caused  by  bigotry  and  oppression  at  home  weakened  the 
foundations  of  the  state.  In  1578  Sebastian  invaded  Africa 
and  sustained  a  crushing  defeat.  Two  years  later  Portugal 
was  forced  to  submit  to  the  dominion  of  Philip  II  of  Spain. 


SPAIN  AND   PORTUGAL  433 

Ferdinand  and  Isabella  were  married  in  1469.  On  the  death 
of  Henry  IV  of  Castile  in  1474,  each  claimed  the  throne,  but 
the  succession  was  ultimately  settled  on  Isabella.  Henry's 
daughter  Joanna  was  also  a  claimant,  supported  in  her  pre- 
tensions by  a  faction  of  the  nobles  and  also  by  her  uncle 
Alfonso  V  of  Portugal.  Her  adherents  were  defeated  in  bat- 
tle. On  Jan.  20,  1479,  John  II,  of  Aragon  died,  leaving  to  his 
son  Ferdinand  the  succession  to  the  thrones  of  Aragon,  Sicily 
and  Sardinia.  Though  Ferdinand  and  Isabella  thus  came  into 
possession  of  the  kingly  office  of  all  these  countries,  they  were 
not  thereby  consolidated  into  one  kingdom,  but  for  the  time 
each  retained  its  separate  system  of  laws.  Navarre,  which 
came  to  John  II  by  his  first  wife,  passed  to  their  daughter 
Eleanor.  Ferdinand  and  Isabella  set  about  increasing  their 
own  power  and  restricting  the  privileges  of  the  nobility.  In 
1476  the  Santa  Hermandad  was  organized  as  a  popular  con- 
federation throughout  the  whole  oif  Castile  for  police  and 
judicial  purposes.  Its  members  were  of  the  burgher  class  and 
its  affairs  were  managed  by  local  courts,  from  which  an  ap- 
peal was  allowed  to  the  Supreme  Court,  and  by  a  junta  of 
deputies  from  all  cities  convened  annually.  A  body  of  2,000 
cavalry  was  placed  at  the  disposal  of  the  brotherhood,  and  a 
special  code  of  laws  for  its  use  was  compiled  in  1485.  The 
jurisdiction  assumed  by  the  Brotherhood  curtailed  by  so  much 
that  of  the  nobles,  and  afforded  something  like  protection 
against  their  tyranny  and  injustice.  The  administration  of 
justice  took  on  some  of  the  characteristics  of  a  regular  sys- 
tem, and  educated  lawyers  were  appointed  to  the  chief  judicial 
pwDsitions.  To  further  strengthen  the  powers  oif  the  sover- 
eigns they  secured  the  grandmasterships  of  the  powerful  mili- 
tary orders  of  St.  lago,  Calatrava  and  Alcantara,  which  in  in- 
dependent hands  might  prove  dangerous.  Lavish  grants  of 
crown  lands  were  revoked  and  the  domains  reclaimed.  Under 
the  prudent  administration  of  Isabella,  to  whom  the  credit 
of  administrative  reforms  is  given,  the  revenues  were  increased 
from  885,000  reals  in  1474  to  26,283,334  in  1504  without  the 
imposition  of  any  new  taxes,  but  the  latter  sum  was  received 
after  the  acquisition  of  Granada  and  includes  its  taxes.    In  his 


434  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

appointments  to  official  positions  Ferdinand  chose  men  attached 
to  his  interests,  without  regard  to  their  rank,  and  built  up  a 
personal  following  on  which  he  could  rely.     Few  sovereigns 
have  exercised  so  profound  an  influence  on  the  institutions 
and  characteristics  of  a  state  as  Ferdinand  and  Isabella.     Be- 
ing both  most  devout  Catholics,  they  set  about  removing  the 
last  vestige  oif  Moslem  power  from  the  peninsula,  and  after 
a  long  and  bloody  war  on  Jan.  2,  1492,  they  entered  Granada, 
the  last  stronghold  of  the  Moors,  in  triumph.     The  religious 
zeal  of  Ferdinand  accorded  with  the  prevailing  sentiments  of 
the  great  mass  of  his  Christian  subjects,  and  by  a  skillful  use 
of  the  religio-military  orders  and  priestly  influences  he  at- 
tached to  his  interests  sufficient  force  to  enable  him  to  over- 
awe and  master  the  proud  Castilian  nobility.    It  accorded  with 
his  general  policy  as  well  as  his  religious  bigotry  to  introduce 
the  institution  of  the  Inquisition  into  Spain.     In  1478,  on  the 
application  of  the  king  and  queen,  Pope  Sextus  IV  issued  his 
bull  for  the  establishment  of  the  Holy  Office,  as  it  was  termed, 
in  Spain,  and  granting  it  the  right  to  appoint  the  inquisitors. 
In  1480  the  first  were  named  from  among  the  Dominicans, 
and  early  in   1481    they  began  their  work  at   Seville.     The 
ostensible  puqxjse  of  the  Holy  Office  was  to  inquire  into  and 
correct  errors  of   religious   faith,   and  thereby  preserve  and 
protect  in  its  purity  the  Christian  religion.     The  sa)fety  of 
human   souls  according  to  the   doctrines   of  the  church  de- 
pended, not  on  conduct  or  morals,  but  on  belief  in  the  estab- 
lished creed  and  observance  of  church  forms  and  requirements. 
Disbelief  of  its  doctrines  or  noncompliance  with  its  ceremonies 
was  magnified  into  crime  and  given  the  direful  name  of  heresy. 
To  discover  and  suppress  heresy  was  the  mission  of  the  Holy 
Office.     In  Spain  th^  Christians  had  to  deal  with  Mohamme- 
dans and  Jews,  stifif  necked  and  perverse  unbelievers,  on  whom 
it  was  deemed  useless  to  use  argument  or  persuasion,  for  they 
had  deliberately  chosen  to  follow  false  doctrines.     Many  of 
them  were  also  guilty  of  another  offense,  which  may  have  in- 
cited the  activity  of  the  inquisitors  quite  as  much  as  errors  oif 
faith,  namely  that  of  possessing  wealth.     It  was  intolerable 
that  heretics  should  live  in  peace  and  enjoy  wealth  while  the 


SPAIN  AND   PORTUGAL  435 

king-  and  clergy  wanted  money.  The  new  tribunal  commenced 
its  work  vigorously,  and  in  the  first  year  298  victims  were 
Ijurned  at  Seville  alone  and  their  estates  confiscated.  In  ans- 
wer to  protests  from  citizens  who  did  not  approve  of  this 
barbarity,  the  Pope  ordered  a  more  mild  administration  of  the 
Holy  Office  and  named  the  archbishop  of  Seville  as  sole  judge 
of  appeals  in  matters  of  faith.  In  1483  Thomas  of  Torquem- 
ada  was  named  by  the  Pope  inquisitor  general  for  Castile  and 
Leon,  and  he  proceeded  to  organize  his  dread  tribunals.  He 
was  the  president  of  the  court  with  two  lawyers  as  assessors 
and  three  royal  counsellors.  This  force  being  found  still  in- 
sufficient ifor  the  work,  a  central  court  was  organized  styled 
the  Conscjo  dc  la  Stiprema,  comjx)sed  of  the  inquisitor  gen- 
eral, six  apostolical  counsellors,  a  fiscal  procuratbr,  three 
secretaries,  an  alguadl  (chief  of  police),  a  treasurer,  four 
servants,  two  informers,  and  such  other  agents  as  might  be 
needed  from  time  to  time.  Under  this  central  tribunal  there 
were  four  local  ones.  All  the  officials  connected  with  the  Holy 
Office  were  paid  out  of  the  confiscated  estates  and  were  there- 
fore directly  interested  in  finding  heretics  of  wealth  and  con- 
victing them.  The  Inquisition  proceeded  to  formulate  its 
rules,  which  were  embodied  in  thirty-nine  articles  and  defined 
the  procedure  of  the  Holy  Office.  These  provided  for  sum- 
moning heretics  to  come  forward  and  confess,  fixed  the  pen- 
alties to  be  borne  by  the  penitent  and  submissive,  regulated  the 
treatment  of  penitents  in  prisons,  the  torture  to  extort  con- 
fessions and  other  procedure  of  trials,  and  authorized  the  con- 
demnation of  dead  heretics  whose  estates  were  coveted.  The 
Inquisition  was  nowhere  approved  by  the  people  and  occa- 
sioned a  revolt  in  Aragon,  but  the  combined  power  of  the 
church,  the  religious  orders  and  the  crown  maintained  it.  The 
procedure  was  provided  with  ample  forms  to  fill  the  require- 
ments of  a  judicial  system,  but  none  of  them  were  designed 
to  afford  protection  to  an  innocent  person  falsely  accused. 
When  complaint  was  made,  a  preliminary  examination  was 
held  and  the  result  reported  to  the  tribunal.  If  the  case  was 
regarded  as  one  calling  for  action,  the  informers  and  wit- 
nesses were  reexamined  and  the  evidence  submitted  to  "the 


436  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

Qualifiers  of  the  Holy  Office,"  a  body  of  priests.     These  hav- 
ing given  their  opinion  against  the  accused,  as  was  their  cus- 
tom, he  was  removed  to  the  secret  prison  of  the  Office  and 
cut   off    from    all    communication    with    the    outside    world. 
Then  if  olio  wed  three  "first  audiences,"  in  which  the  officials 
did  their  best  to  extort  a  confession.     If  unsuccessful  in  this 
the  fiscal  in  charge  demanded  torture  to  extort  a  confession. 
After  torture,  for  which  the  most  fiendish  devices  were  used, 
the  victim  was  taken  before  the  court,  where  the  charges  were 
for  the  first  time  read  to  him,  and  he  was  asked  if  he  desired 
to  make  a  defense.     If  he  answered  that  he  did,  he  was  al- 
lowed to  choose  a  lawyer  from  a  list  furnished  by  the  court,, 
all  of  whom  could  be  relied  on  to  offer  no  obstacle  to  a  con- 
viction.    After  all  the  evidence  was  in  the  Qualifiers  were 
again  called  on  for  their  opinion  on  the  whole  case.     This 
being  adverse  to  the  accused,  he  was  sentenced  with  privilege 
of  appeal  to  the  Supreme  tribunal  or  to  the  Pope.    These  ap- 
peals afforded  a  chance   for  the  friends  of  the  accused  to 
contribute  their  means  to  the  papal  treasury.    If,  as  sometimes 
happened,  the  victim  was  at  last  acquitted,  he  might  retire  to 
his  home,  broken  in  body  and  ruined  in  fortune  with  no  re- 
dress against  his  accusers.     If  condemned,  he  was  brought 
before  the  court,  regaled  with  the  solemnity  of  the  Auto-da-fe 
and  inlformed  of  his  fate.     He  might  then  become  reconciled 
and  as  a  penitent  submit  to  the  severe  penalties  prescribed,  or, 
refusing  to  do  so,  he  was  ''relaxed,"  that  is  turned  over  to  the 
secular  authorities  to  be  burned ;  for  the  church  shed  no  blood ! 
Later  under  Ximenes  the  institution  was  further  extended 
by  the  organization  of  ten  tribunals,  at  Seville,  Jean,  Toledo, 
Estramadura,  Murcia,  Valladolid,  Majorica,  Pampeluna,  Sar- 
dinia and  Sicily,  and  under  Charles  V  and  Philip  II  it  was 
extended  and  performed  its  horrible  work  on  the  Protestants 
of  the  Netherlands,  of  whom  great  numbers  were  tortured  and 
burned.    The  institution  was  introduced  into  Portugal  in  1536 
on  the  solicitation  of  John  III,  where  it  performed  its  deadly 
office  with  great  vigor.     Its  blighting  influences  were  mani- 
fested by  a  marked  decrease  of  the  population  of  Spain  and 
Portugal  and  by  the  crushed  spirit  of  the  people.     Literature 


SPAIN  AND   PORTUGAL  437 

could  not  thrive  where  almost  any  publication  was  liable  to  be 
found  by  the  Qualifiers  to  contain  heretical  expressions.  The 
figures  given  of  the  numbers  who  in  Spain  became  victims  oif 
the  Holy  Ofiice  prior  to  1810  are  sufficiently  appalhng,  31,912 
burnt  alive,  291,450  imprisoned  as  penitents  and  17,659  burned 
in  effigy  and  their  estates  confiscated.  But  this  by  no  means 
indicates  the  full  measure  of  misery  and  evil  caused  by  this 
awful  wickedness.  Great  numbers  left  their  homes  and  per- 
ished in  foreign  lands  to  escape  its  hands,  and  all  freedom  of 
expression  and  intellectual  progress  were  blasted.  Though 
acting  with  close  observance  of  forms  and  executing  what 
were  regarded  as  written  laws,  sanctioned  by  that  authority 
most  highly  venerated,  the  Roman  Church,  in  their  actual 
workings  these  tribunals  utterly  disregarded  all  law,  human 
and  divine,  and  trials  before  them  were  conducted  by  methods 
that  could  not  fail  of  the  most  diabolical  results.  The  accusers 
were  the  judges  and  profited  by  every  conviction.  The  pro- 
ceedings were  secret,  and  the  accused  denied  all  tests  by  which 
the  falsity  of  the  evidence  against  him  could  be  shown,  or  by 
which  ifacts  favorable  to  his  innocence  might  be  established. 
Confinement  and  torture  were  inflicted  on  those  accused, 
whether  guilty  or  innocent.  But  beneath  all  this  the  whole 
system  was  utterly  wanting  in  any  moral  basis.  The  alleged 
crime  of  heresy  is  a  myth.  The  opinions  on  religious  subjects 
of  one  mind  are  as  sacred  as  those  of  another. 

Though  utterly  indefensible  in  its  purposes  and  methods 
and  baneful  in  its  results,  the  Inquisition  was  still  a  logical 
outgrowth  of  the  prevailing  spirit  of  the  times.  During  more 
than  seven  centuries  difference  of  religious  faith  had  fur- 
nished the  pretext  for  bloody  wars  between  Christians  and 
Mohammedans,  in  which  many  battles  were  fought  in  either 
of  which  more  men  were  killed  for  religion's  sake  than  all 
whose  lives  were  taken  by  the  Inquisition.  Though  the  moral 
sense  of  the  Christian  world  o-f  today  revolts  at  the  cruelties 
and  rank  injustice  of  the  Inquisition,  it  still  glories  in  the  deeds 
of  the  Cid  and  the  many  renowned  kings  of  Spain  and  Portu- 
gal who  led  their  people  to  death  in  wars  against  the  infidels, 
and  draws  deep  satisfaction  from  accounts  of  the  wholesale 


4.38  EVOLUTION  OF  GOVERNMENTS  ANiD  LAWS 

slaughter  of  the  more  pohshed  and  industrious  followers  of 
the  Prophet.  To  establish  a  tribunal  to  punish  those  who 
after  the  expulsion  of  the  Moors  still  persisted  in  denying  the 
creed  of  the  victors  was  merely  carrying  the  purpose  of  rid- 
ding Spain  of  unbelievers  to  its  logical  end.  What  use  to 
drive  out  the  Moslems  by  iforce  of  arms  if  unbelievers  might 
still  retain  their  wealth  and  dwell  in  security  in  Spain?  Why 
kill  heretics  in  battle  if  they  were  entitled  to  live  in  peace  after 
their  armies  were  destroyed  ?  The  savagery  of  war  still  gains 
the  approval  and  even  the  admiration  of  most  of  mankind, 
though  it  has  been  productive  in  Spain  of  a  hundred  times 
more  misery  than  the  Inquisition. 

The  wars  of  Ferdinand  were  not  confined  to  those  against 
the  Moorish  followers  of  the  Prophet,  but  in  Italy  he  fought 
against  other  Christians  for  territory  which  he  claimed  as 
appurtenant  to  the  throne  of  Aragon,  and  wrested  Naples 
from  the  French  king.  The  greatest  glory  of  the  reign  of 
Ferdinand  and  Isabella  came  as  the  ifruit  of  a  peaceful  enter- 
prise for  which  Isabella  made  provisions.  The  discovery  of 
America  by  Columbus  gave  Spain  a  prestige  and  an  oppor- 
tunity for  expanding  its  wealth  and  power  far  outweighing  all 
the  conquests  of  Ferdinand  in  his  bloody  wars.  The  year  1492 
witnessed  the  departure  of  the  Moors  from  Spain  and  the 
opening  to  view  of  the  new  world.  On  the  death  of  Isabella 
in  1504  there  was  a  temporary  separation  of  Aragon  and  Cas- 
tile, occasioned  by  the  selection  by  the  Castilians  of  the  arch- 
duke Philip  as  regent  during  the  minority  of  the  infant 
Charles,  but  Philip's  death  was  followed  by  the  choice  of 
Ferdinand  as  regent.  In  15 12  he  wrested  Navarre  ifrom 
France,  thus  combining  all  Spain  under  his  rule.  The  policy 
of  Ferdinand,  steadily  pursued  throughout  his  long  reign, 
resulted  in  the  concentration  of  the  powers  of  government  in 
the  hands  of  the  king.  The  administration  was  carried  on 
through  the  instrumentality  of  five  councils,  the  "Royal  Coun- 
cil" as  the  highest  court  of  justice,  the  "Council  of  the  Su- 
preme" for  ecclesiastical  affairs  and  the  Inquisition,  the 
"Council  of  the  Orders"  for  the  direction  of  the  great  military 
orders,  the  "Council  of  Aragon"  for  the  management  of  that 


SPAIN  AND  PORTUGAL  439 

kingdom  and  Naples  and  the  ''Council  of  the  Indies"  'for  the 
territories  discovered  by  Columbus.  The  firm  alliance  be- 
tween church  and  state  and  the  religious  policy  established 
during  this  reign  fixed  the  character  and  moulded  the  policy 
of  the  Spanish  government  till  modern  times,  and  still  in- 
fluence it  in  great  measure.  Ferdinand  died  in  1516  and 
Charles,  son  of  his  daughter  Joanna  and  of  her  husband  Philip 
son  of  the  German  Emperor  Maximilian  I,  succeeded  to  the 
thrones  of  Castile  and  Aragon,  and  thus  the  House  of  Haps- 
burg  came  to  the  united  Spanish  throne.  In  15 19  Charles 
succeeded  his  father  as  emperor.  Serious  revolts  followed. 
Charles  was  a  foreigner  by  birth,  reared  in  the  Netherlands, 
and  it  was  only  by  intimidation  that  he  obtained  supplies  for 
his  wars  from  the  cortes.  After  his  authority  had  become 
well  established  and  all  rebellions  suppressed,  Charles  con- 
vened the  Castilian  cortes  in  1523  and  compelled  them  to  grant 
supplied  before  presenting  their  petitions  for  redress,  thus 
establishing  a  precedent  adhered  to  therealfter,  which  gave 
him  what  he  required  and  still  left  him  free  to  reject  all  de- 
mands of  the  cortes.  During  his  reign  Cortes  conquered 
Mexico,  Pizarro,  Peru,  and  Milan  and  a  portion  of  North 
Africa  were  added  to  his  dominions.  In  1538,  as  a  result  of 
the  refusal  of  the  nobles  in  the  Castilian  cortes  to  consent  to 
an  excise  tax,  Charles  excluded  them  from  seats  in  the  cortes, 
which  thereafter  consisted  of  only  thirty-six  deputies  from 
eighteen  towns,  who  were  wholly  wanting  in  strength  to  op- 
pose the  will  of  the  king.  On  the  abdication  of  the  throne  by 
Charles,  his  brother  Ferdinand  became  emperor  of  Germany, 
and  his  son  Philip  succeeded  to  the  Spanish  throne  and  made 
Madrid  his  capital.  He  was  a  narrow  bigot,  and  his  policy 
was  thoroughly  despotic.  By  military  iforce  he  crushed  all 
remnants  of  popular  liberty,  and  by  the  aid  of  the  Inquisition 
he  destroyed  whomsoever  he  pleased.  He  caused  the  justiza 
of  Aragon  to  be  put  to  death  and  assumed  the  right  of  naming 
his  successor.  The  control  of  the  cortes  over  judicial  affairs 
was  taken  away.  The  extension  of  Spanish  dominions  gave 
to  the  king  ample  power  to  take  away  the  ancient  privileges  of 
the  provincial  cortes  separately,  and  the  Spanish  people  suf- 


440  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

fered  from  the  spread  of  Spanish  dominion.  In  1580  Phihp 
maintained  his  claim  to  the  throne  of  Portugal  by  an  army 
commanded  by  the  Duke  of  Alva,  and  thus  the  whole  penin- 
sula became  united  under  his  rule.  During  his  reign  the  In- 
quisition employed  its  force  to  crush  Protestantism  in  the 
Netherlands,  but  met  with  a  stubborn  resistance  that  after  the 
martyrdom  of  vast  numbers  of  its  citizens  finally  resulted  in 
independence. 

Philip  died  in  1 598,  leaving  a  great  empire  to  his  son  Philip 
III,  yet  the  search  for  gold  in  the  New  World  and  the  prose- 
cution of  wars  for  the  aggrandizement  of  the  king  consumed 
the  lives  of  men  and  impoverished  those  rich  districts,  which 
when  properly  cultivated  by  a  peaceful  and  industrious  popu- 
lation yielded  riches  in  great  abundance.  Though  in  the  wilds 
of  America  priests  sought  to  convert  the  heathen,  Spanish 
policy  everywhere  was  wanting  in  moral  strength.  Wars  of 
conquest  and  the  vast  acquisitions  of  American  gold  failed  to 
make  good  the  loss  of  the  natural  returns  of  the  efforts  of 
her  soldiers  if  employed  in  peaceable  callings.  The  gold  suf- 
ficed for  only  one  purchase  and  then  passed  into  the  channels 
of  trade.  The  industries  of  the  Netherlands  enabled  them  to 
keep  the  gold  which  Spain  wrested  from  her  new  subjects. 
The  narrow  bigotry  of  Philip  III  found  expression  in  1609 
in  an  order  requiring  all  Moriscoes  to  leave  Spain  within  three 
days  under  penalty  of  death.  The  order  was  wholly  without 
justification  in  morals  or  economics,  as  the  Moriscoes  consti- 
tuted the  most  industries,  skillful  and  peaceful  portion  of  the 
population.  They  were  leaders  in  agriculture  and  manufac- 
tures, and  their  expulsion  was  a  crushing  blow  to  the  material 
resources  of  the  kingdom,  as  well  as  a  most  cruel  and  un- 
justifiable infliction  on  them.  By  their  expulsion  the  revenues 
were  greatly  reduced.  The  desire  for  foreign  dominion  and 
devotion  to  the  Catholic  cause  combined  sufficient  influence 
on  Philip  to  draw  him  into  the  Thirty  Years'  war  in  Germany. 
Spanish  troops  took  a  leading  part  in  that  great  contest  and 
came  in  contact  with  the  Swedes  and  their  Protestant  allies. 
The  wars  brought  neither  profit  nor  glory  to  Spain.  The 
Dutch   gained   signal   victories   over  the    Spanish   fleets   and 


SPAIN  AND   PORTUGAL  441 

destroyed  their  naval  ascendency,  which  had  resulted  from 
the  discovery  of  America.  Though  great  victories  were 
gained  on  land,  they  were  barren  of  advantageous  results. 
An  edict  calling  all  able-bodied  men  to  join  the  army  resulted 
in  a  revolt  in  Catalonia,  the  driving  out  of  the  Castilian  troops 
and  the  establishment  of  a  republic  under  the  protection  of 
France.  Still  more  important  in  its  permanent  consequence 
was  the  revolt  of  Portugal,  occasioned  by  the  same  measure, 
and  resulting  in  the  independence  of  that  kingdom  in  1640. 
As  a  result  of  naval  victories  the  Dutch  took  from  Spain  its 
possession^  in  Malacca,  Java,  Ceylon  and  much  of  Brazil,  and 
forced  it  to  abandon  its  claims  to  Holland  and  even  to  cede 
to  them  the  northern  districts  of  Brabant,  Flanders  and  Lim- 
burg.  Catalonia  was  soon  reduced  to  submission.  France 
haying  effected  an  alliance  with  England,  forced  the  Spaniards 
to  submit  to  still  ifurther  loss  of  territory  in  the  low  coun- 
tries. Under  Philip  IV  and  Charles  II  Spain  continued  to 
lose  prestige  down  to  the  time  of  the  death  of  the  latter  in 
1700.  The  effects  of  religious  bigotry,  of  despotic  govern- 
ment, of  the  concentration  of  the  wealth  of  the  country  and 
the  ownership  of  the  lands  in  monastic  establishments  and 
an  indolent  nobility,  devoid  of  all  enterprise  and  given  over 
to  luxurious  living,  and  of  a  most  unwise  and  oppressive  sys- 
tem of  taxation,  are  better  shown  by  a  comparison  of  con- 
ditions in  Spain  at  the  close  of  that  period  with  those  in 
former  times,  than  by  the  mere  loss  of  rulership  over  distant 
provinces.  The  population  of  the  country,  estimated  at 
twenty  millions  under  the  Arabs  and  at  twelve  millions  under 
Ferdinand  and  Isabella,  had  fallen  to  six  millions  under 
Charles.  The  Moors,  the  most  industrious  element  of  the 
population,  had  been  driven  out;  manufactures  declined,  fer- 
tile districts  became  barren  through  lack  of  cultivation,  the 
destruction  of  trees  and  general  inefficiency  of  the  agricultural 
system.  After  being  the  first  naval  power  in  the  world  Spain 
ceased  to  be  formidable  on  the  sea.  Her  foreign  commerce 
passed  into  the  hands  of  the  Dutch  and  English  merchants, 
and  she  was  unable  to  hold  the  trade  of  even  her  own  colo- 
nies in  the  new  world.    Education  was  neglected.    The  people 


44^  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

were  neither  instructed  in  letters  nor  in  the  useful  arts. 
Nowhere  else  has  the  contrast  between  a  fairly  just  and  Hberal 
Mohammedan  policy  and  a  bigoted  cruel  and  unjust  enforce- 
ment of  a  creed  called  Christian  been  exhibited  so  disad- 
vantageously  to  the  latter  as  in  Spain.  Nowhere  else  have 
scientific  truth  and  the  moral  law  been  so  ruthlessly  super- 
seded by  a  false  and  cruel  priestly  tyranny.  The  war  of  the 
Spanish  succession,  which  ensued  on  the  death  of  Charles  II, 
involved  no  principle  of  interest  to  the  multitude,  but  was  a 
contest  instigated  by  crowned  heads  for  their  own  ends. 
France,  England,  Portugal,  Holland  and  Austria  tvere  all  in- 
volved, and  bloody  battles  were  fought,  but  at  the  end  by  the 
accession  of  the  Archduke  Charles  to  the  throne  of  Austria 
and  the  German  empire  England  found  that  the  cause  for 
which  it  had  fought  was  the  one  most  dangerous  to  its  inter- 
ests. Peace  was  concluded  leaving  Gibraltar  and  Minorca  in 
the  possession  of  England  with  the  added  privilege  of  im- 
porting slaves  into  the  Spanish  colonies.  The  right  of  Philip 
V  to  the  Spanish  throne  was  recognized,  the  cause  of  the  Cata- 
lans, who  had  supported  Charles,  was  abandoned,  and  they 
were  left  to  defend  themselves.  Though  they  fought  obsti- 
nately, the  power  of  Castile  was  too  great ;  they  were  crushed 
and  all  their  ancient  liberties  were  forever  after  denied  them. 
Thereafter  they  were  ruled  from  Madrid  under  Castilian  laws. 
Later  Philip  neglected  his  subjects  at  home  and  caused  many 
of  them  to  fight  against  Austria  for  possessions  in  Italy.  The 
contest  dragged  on  till  his  death  in  1 744.  No  advantage  came 
to  Spain  from  the  long  contest,  but  a  little  added  territory 
for  Don  Philip  to  pass  to  Austria  on  the  extinction  of  his 
male  descendants. 

Ferdinand,  VI  spoken  of  as  weak  and  obstinate,  had  the 
blessed  courage  to  keep  the  country  at  peace.  He  refused  to 
be  drawn  into  the  Seven  Years'  war,  and  for  the  thirteen  years 
of  his  reign  he  allowed  his  subjects  exemption  from  the  hor- 
rors o,f  war.  The  reign  of  this  monarch  also  witnessed  a 
marked  reaction  against  the  papal  power.  In  1753  he  as- 
serted his  right  to  appoint  to  all  important  benefices,  and  of 
the  12,000,  which  the  Pope  had  filled  before,  Ferdinand  left 


SPAIN  AND  PORTUGAL  443 

only  fifty-two.  He  next  issued  an  edict  that  henceforth  papal 
bulls  should  not  be  obeyed  till  they  had  received  the  royal  sanc- 
tion. Charles  III,  who  came  to  the  throne  in  1759,  continued 
the  work  by  driving  out  the  Jesuits,  restricting  the  extension 
of  church  lands,  and  moderating  the  cruelties  of  the  Inquisi- 
tion. At  the  time  of  the  American  revolution  Spain  joined 
with  France  against  England,  and  on  the  conclusion  of  peace 
gained  Minorca  and  Florida.  This  reign  was  one  of  material 
progress.  The  ministers  sought  to  restore  prosperity  by  the 
encouragement  and  protection  of  industry  and  trade.  By  a 
most  comrtiendable  ordinance  issued  in  1773  an  effort  was 
made  to  remove  the  Castilian  prejudice  against  trade  by  de- 
claring that  no  loss  of  rank  or  privilege  should  be  occasioned 
by  engaging  in  industrial  occupations.  Agriculture  was 
stimulated  by  the  construction  of  roads  and  canals,  and  by 
removing  the  restriction  on  inclosures,  that  had  been  imposed 
at  the  instance  of  the  owners  of  the  great  flocks  oif  sheep 
which  overran  the  country  and  destroyed  all  cultivated  crops. 
Charles  III  died  and  Charles  IV  came  to  the  throne  at  the 
outbreak  of  the  French  revolution.  A  Bourbon  king  could 
not  sympathize  with  a  demand  for  popular  rights,  and  the 
policy  of  the  Spanish  monarch  was  reactionary  and  directed 
to  strengthening  the  despotism.  Spain  joined  the  first  coali- 
tion against  France  and  sustained  crushing  defeats  in  the 
campaigns  of  1793  and  1794,  due  mainly  to  inefficient  organi- 
zation and  want  of  supplies.  This  was  followed  by  a  treaty 
of  peace  which  bound  Spain  in  an  alliance  with  France  against 
England.  In  1800  Spain  ceded  Louisiana  to  France  and 
agreed  to  aid  her  in  all  her  wars,  and  in  1801  invaded  Portu- 
gal at  the  call  of  Napoleon.  In  the  struggle  with  England 
the  Spanish  fleet  was  destroyed  and  the  prestige  of  the  former 
nation  at  sea  firmly  established,  but  French  influence  still 
dominated,  and  in  1808  Napoleon  caused  Charles  IV  to  ab- 
dicate and  placed  his  brother  Joseph  on  the  throne.  A  popular 
uprising  was  temporarily  successful  and  entrusted  the  gov- 
ernment to  a  junta  of  thirty  four,  to  rule  in  the  name  of 
Ferdinand,  but  Napoleon  soon  scattered  their  army  and  re- 
stored his  brother  to  power.     The  national  party  made  Cadiz 


444  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

its  capital,  and  in  1810  the  cortes  assembled  there.  In  181 2  it 
promulgated  a  constitution  providing  for  a  limited  monarchy 
with  all  legislative  power  in  the  hands  of  a  single  national 
assembly. 

With  the  aid  of  the  English  under  Wellington  the  French 
were  driven  out  of  Spain  in  181 3,  and  in  the  next  year  Fer- 
dinand 7th  returned  to  Madrid  and  assumed  authority.  He 
set  aside  the  liberal  constitution,  restored  the  nobles  and  the 
monasteries  to  their  privileges  and  exemptions  from  taxation, 
allowed  the  Jesuits  to  return  and  the  Inquisition  to  resume 
operations.  A  tyrannical  and  profligate  court  and  bigoted 
clergy  again  combined  to  crush  all  liberal  sentiment.  In  1819 
the  sale  of  Florida  to  the  United  States,  the  revolt  of  the  Span- 
ish colonies  in  America  and  the  ill  success  of  the  government 
in  its  efforts  to  reduce  them  to  obedience,  caused  great  popular 
discontent  throughout  Spain.  In  1820  a  revolt  started  at 
Cadiz,  which  rapidly  spread  over  the  whole  country.  The 
king  accepted  the  constitution  of  18 12,  dismissed  his  ministers 
and  put  liberals  in  their  places.  The  cortes  met  and  proceeded 
to  abolish  the  monasteries,  the  Inquisition,  the  clerical  titles 
and  entails  of  landed  estates,  and  to  pass  laws  to  secure  free- 
dom of  the  press  and  of  public  meetings.  This  was  distasteful 
to  the  monarchs  df  Europe,  and  in  1823,  at  the  dictation  of  the 
Holy  Alliance  through  a  congress  at  Verona  held  by  France, 
Austria,  Russia  and  Prussia,  a  French  army  invaded  Spain 
and  restored  despotic  power  to  Ferdinand. 

In  1829  Ferdinand  issued  an  edict  abolishing  the  Salic  law, 
which  excluded  females  from  succession  to  the  throne.  In 
1833  he  died,  and  his  infant  daughter  Isabella  was  proclaimed 
queen  with  her  mother  as  regent.  Ferdinand's  brother,  Don 
Carlos,  claimed  the  crown  under  the  Salic  law  and  drew  to 
his  aid  the  supporters  of  absolutism.  Christiana  was  support- 
ed by  the  liberals  and  granted  a  constitution  establishing  two 
legislative  chambers  chosen  by  indirect  election.  This  was  not 
satisfactory  to  the  liberals,  and  in  1836  the  constitution  of 
1 81 2  was  revived.  By  1839  the  Carlists  were  subdued.  In 
1843,  after  temporary  ascendency  of  the  radicals,  which  had 
caused  Christiana  to  withdraw  to  France  and  the  selection  of 


SPAIN  AND  PORTUGAL  445 

Espertero  as  regent  by  the  cortes,  Isabella  became  of  age  and 
was  recognized  as  queen.  The  history  of  her  reign  is  one  of 
court  intrigue,  with  the  reactionary  party  in  the  ascendency 
most  of  the  time.  Married  to  a  cousin,  who  was  believed  to 
be  an  imbecile,  though  not  really  quite  so,  she  had  piety  with- 
out morality,  and  the  Spanish  nation  had  to  bear  the  shame  of 
a  notoriously  licentious  woman  as  its  queen;  fat,  coarse  and 
indolent,  she  yet  was  good  natured,  generous  and  kind  hearted. 
She  even  delighted  in  granting  pardons,  to  which  Spanish 
monarchs  generally  showed  great  aversion.  In  1854  there  was 
a  popular  uprising  with  rioting  at  Madrid,  resulting  in  the 
appointment  af  a  liberal  ministry,  whose  purposes  were  ex- 
pressed in  a  proclamation  stating:  "We  desire  the  preserva- 
tion of  the  throne,  but  without  the  carmarilla  which  dishonors 
it ;  the  rigorous  enforcement  of  the  fundamental  laws,  improv- 
ing them,  especially  those  of  elections  and  the  press ;  a  diminu- 
tion of  taxation  founded  on  strict  economy,  and  also  respect 
to  seigniority  and  merit  in  the  military  and  naval  services. 
We  desire  to  give  the  towns  the  local  independence  necessary 
to  preserve  and  to  increase  their  own  interests,  and  as  a  guar- 
antee of  these  things  we  desire  a  national  militia." 

In  1866  Isabella  recalled  her  old  ministers,  the  most  prom- 
inent liberals  were  driven  into  exile  and  the  cortes  dissolved. 
In  1868  another  revolt  occurred  which  caused  Isabella  to  go 
to  France.  A  cortes  was  summoned  and  met  in  1869,  which 
adopted  a  new  constitution  providing  for  a  limited  monarchy. 
It  substituted  the  principle  that  the  sovereign  power  was  de- 
rived from  the  people  for  the  doctrine  of  divine  right  of  kings, 
granted  religious  liberty  and  provided  for  a  Council  of  State, 
a  Senate  and  House  df  Representatives.  A  regent  was  chosen 
to  hold  pending  the  choice  of  a  king.  In  Nov.  1870  Amadeo 
of  Savoy  was  chosen  by  the  cortes,  'but  he  left  the  country, 
which  he  could  not  successfully  govern,  in  Feb.  1873.  There- 
upon the  cortes  proclaimed  a  republic.  War  with  the  Carlists 
followed  without  very  decisive  results.  The  republic  lacked 
vigor,  and  on  the  last  day  of  1874  Alfonzo  XII,  son  of  Isa- 
bella II,  was  proclaimed  king  and  acknowledged  by  the  army. 
There  had  been  five  changes  of  ministry  in  less  than  two  years 


446  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

with  much  modification  of  the  theory  of  government,  the  last 
being  a  virtual  dictatorship.  The  Carlists  continued  the  fight 
for  a  short  time,  when  Don  Carlos  gave  up  the  struggle  and 
left  the  country.  Under  the  reign  of  Alfonzo  XII  as  a  con- 
stitutional monarch  Spain  enjoyed  peace  till  his  death  in  1885. 
After  his  death  a  son  was  born,  who  came  to  the  throne  as 
Alfonzo  XIII.  His  mother  ruled  as  regent  through  his  mi- 
nority, during  which  time  Spain  was  forced  by  the  United 
States  to  relinquish  its  claims  to  Cuba,  Porto  Rico  and  the 
Philippine  Islands. 

Shorn  of  its  foreign  possessions,  it  does  not  necessarily  fol- 
low that  the  people  have  to  face  more  unfavorable  conditions. 
On  the  contrary  there  are  evidences  already  that  the  statesmen 
of  Spain  are  beginning  to  grasp  the  true  basis  of  national 
greatness.  Proud,  indolent  grandees,  who  refuse  to  do  any- 
thing useful  and  squander  the  resources  of  the  country  in 
ostentatious  living,  are  a  curse  and  nothing  more  to  any  coun- 
try. Those  of  Spain  have  if  or  many  centuries  been  advanced 
types  of  worthless  nobles.  Though  popular  government  was 
not  unknown  in  many  of  the  districts  of  Spain,  and  the  people 
of  Aragon,  Catalonia,  the  Basque  provinces  and  the  large  cities, 
have  exhibited  a  disposition  and  capacity  for  preserving  popu- 
lar liberty,  the  composition  of  society  throughout  the  nation 
seems  to  be  such  as  to  still  invite  abuses  in  the  administration 
of  public  affairs.  The  grand  lack  in  Spain,  as  everywhere  else 
on  the  face  of  the  earth,  is  of  knowledge,  social  virtue  and 
morality.  The  people  are  more  generally  illiterate  than  else- 
where in  Europe,  though  under  the  Arabs  their  schools  were 
probably  the  best  then  in  existence.  Primary  education  has 
been  compulsory  by  law  since  1857,  but  only  a  small  portion  of 
the  population  can  read  and  write ;  about  twenty-five  per  cent. 
Progress  is  being  made,  however,  and  the  time  is  probably  not 
far  distant  when  the  Spanish  people  will  take  the  rank  to 
which  they  are  entitled,  and  which  in  past  generations  was  not 
inferior  to  any  others  in  Europe. 

By  the  fundamental  law  o/f  June  30,  1878  the  monarchy  is 
hereditary,  and  the  king  becomes  of  age  at  sixteen.  He  is 
grand  master  of  the  eight  orders  of  knighthood.    He  exercises 


SPAIN  AND   PORTUGAL  447 

the  legislative  power  in  conjunction  with  the  cortes,  which 
is  composed  of  a  senate  and  a  chamber  of  deputes.  The  senate 
is  made  up  of  three  orders:  i.  Members  by  right  of  birth, 
princes,  rich  nobles  and  the  highest  state  officials.  2.  Members 
nominated  by  the  king  for  life.  3.  Members  elected  by  the 
state  corporations  and  chief  tax  payers  for  a  term  of  five 
years.  The  number  of  the  first  two  classes  must  not  exceed 
one  hundred  and  eighty,  and  there  may  be  as  many  of  the 
third.  The  chamber  otf  deputies  consists  of  one  deputy  for 
every  50,000  population,  elected  for  five  years,  by  electors 
twenty-five  years  of  age,  who  have  paid  a  land  tax  of  twenty- 
five  pesatas  for  one  year  or  an  industrial  tax  of  fifty  pesatas 
for  two  years.  There  are  eight  executive  departments,  pre- 
sided over  by  ministers  responsible  to  the  cortes  for  their  acts. 
Tn  each  province  there  is  a  civil  governor  and  an  elective  coun- 
cil chosen  by  the  communes.  The  system  of  laws  as  in  most 
European  states  is  based  on  the  Roman  law  with  local  modifi- 
cations. There  is  a  court  of  first  instance  in  each  of  the  501 
judicial  districts  into  which  the  kingdom  is  divided  and  a  court 
of  second  instance  in  each  of  the  fifteen  divisions  in  which 
they  are  grouped,  with  a  supreme  court  of  cassation  or  review 
at  Madrid.  Justice  is  administered  publicly,  and  parties  must 
be  represented  by  counsel. 

On  achieving  independence  ifrom  Spain  in  1640  Portugal 
recognized  John  IV  as  king.  Portugal  exhibited  substantially 
the  same  tendencies  toward  increased  power  in  the  monarch 
as  most  European  states  for  the  next  century,  though  some 
great  reforms  were  made,  especially  in  the  reign  of  Joseph, 
who  came  to  the  throne  in  1750  and  abolished  slavery,  which 
had  become  a  great  curse  to  the  country.  From  1677  to  1828 
the  cortes  never  convened.  The  people  of  Portugal  were  pro- 
foundly impressed  by  the  French  revolution  and  were  involved 
in  the  succeeding  wars.  In  1820  a  constituent  assembly 
framed  a  constitution  abolishing  the  Inquisition  and  with 
many  radical  changes,  but  this  constitution  never  became  fully 
operative. 

In  1826  Pedro  IV,  who  had  ruled  Brazil  under  his  father 
succeeded  to  the  throne  of  Portugal  also.     He  drew  up  a 


448  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

charter  for  a  constitutional  monarchy  and  appointed  his  brother 
Miguel  regent  of  Portugal.  Miguel  refused  to  recognize  the 
constitution  and  assumed  absolute  power.  Civil  war  soon  fol- 
lowed. The  struggle  between  the  reformers  and  the  adherents 
to  the  ancient  order  continued  with  varying  success  and  more 
or  less  violence  to  the  close  of  the  reign  of  Maria  II.  Some- 
times the  constitution  was  followed,  then  it  was  amended,  and 
at  other  times  disregarded,  but  by  the  time  of  the  accession 
of  Pedro  V  in  1855  matters  had  become  fairly  settled,  and 
Portugal  entered  on  a  more  peaceful  and  prosperous  career. 
In  1852,  1878  and  1895  the  charter  of  1826  was  amended. 
The  monarchy  was  hereditary,  and  the  king  ruled  with  the 
advice  of  a  cabinet  of  seven  members  chosen  by  a  premier 
named  by  the  king.  The  cortes  consisted  of  a  House  of  Peers 
of-  ninety  members,  nominated  by  the  king  for  life.  They 
were  not  all  titled  nobles,  nor  were  air  the  nobility  entitled  to 
seats.  The  House  oif  Deputies  had  one  hundred  and  forty- 
eight  members,  elected  by  all  male  citizens  twenty-five  years 
of  age  or  over,  who  paid  above  $1.10  direct  tax  per  year  or 
had  an  annual  income  from  real  estate  of  $4.50.  By  the 
revolution  of  1910  the  monarchy  was  overthrown  and  a  repub- 
lic established.  The  religious  orders  were  expelled  and  their 
property  confiscated.  The  Council  of  State  was  abolished  as 
were  also  all  hereditary  titles  and  privileges.  The  country 
is  divided  into  seventeen  administrative  and  twenty-six  judicial 
districts.  There  are  courts  of  appeals  at  Lisbon  and  Oporto 
and  a  Supreme  Court  at  Lisbon.  There  are  governors  in  the 
administrative  districts  and  elected  councillors  in  each  of  the 
292  concellos  and  in  each  of  the  3960  freguezias  there 
is  a  magistrate  elected  by  the  people,  with  authority  corres- 
ponding to  that  of  a  justice  of  the  peace.  Education  is  com- 
pulsory under  the  law  of  1844,  which  required  all  children 
from  seven  to  fifteen  years  of  age  to  attend  a  primary  school. 
There  is  a  university  at  Coimbra  and  there  are  at  various  towns 
secondary  and  high  schools.  The  improvement  df  the  system 
of  government  and  the  increased  prosperity  of  the  people  have 
followed  the  work  of  the  schools.  The  economic,  moral  and 
political  value  of  the  general  diffusion  of  knowledge  among 


SPAIN  AND  PORTUGAL  449 

the  people  has  been  shown  by  the  improvements  in  social  and 
material  conditions. 

Authorities 

Henry  Coffee:     History  of  the  Conquest  of  Spain  by  the 

Arab  Aloors. 
W.  H.   Prescott:     History  of  the  Reign  of  Ferdinand  and 

Isabella. 
W.  H.  Prescott :    History  of  the  Reign  of  Charles  V  of  Spain. 
Gibbon:     Decline  and  Fall  of  the  Roman  Empire. 
Guizot:    History  of  Civilization. 
Hallam:     Middle  Ages. 
Encyclopaedia  Britannica. 
Continental  Legal  History  Series,  vol.  i. 


CHAPTER  XIX 

Denmark,  Sweden  and  Norway 

The  inhabitants  at  the  Scandinavian  peninsula  and  of  the 
islands  and  peninsula  lying  across  the  water  to  the  south  are 
so  closely  allied  in  blood,  and  their  history  has  been  so  closely 
connected,  that  the  development  of  their  institutions  will  be 
treated  together.  That  they  are  closely  related  to  the  Germans 
is  evident,  though  the  date  of  their  separation  precedes  history. 
Their  earliest  known .  organization  differed  from  that  of  the 
Germanic  tribes  in  the  system  of  land  tenure.  The  village 
tenure  in  common  never  obtained  so  far  as  we  are  informed. 
Land  was  treated  as  the  property  of  the  individual  owner. 
Slavery  existed,  though  the  number  of  slaves  was  not  large. 
The  spirit  of  the  people  was  distinctly  opposed  to  submission 
to  authority,  and  the  power  to  manage  their  affairs  remained 
in  the  body  of  freemen.  Local  affairs  were  determined  in  a 
meeting  of  the  free  men  of  the  district,  and  those  o(f  the  whole 
country  by  a  general  assembly  of  freemen,  there  being  no  sys- 
tem of  representation.  Before  the  advent  of  written  laws  the 
Swedes  and  Norwegians  had  their  law-men,  who  were  looked 
to  as  repositories  of  the  traditions  of  the  law.  They  recited 
the  laws  to  the  people  in  their  assemblies — Things — and  were 
consulted  in  cases  of  doubt.  The  Scandinavians  first  became 
known  to  the  balance  of  Europe  from  their  incursions  by  sea. 
They  were  navigators  at  an  early  day,  and  their  enterprises 
were  directed  against  all  the  coasts  of  the  continent  and  British 
Isles,  which  they  pillaged  and  laid  waste  in  the  most  ruthless 
manner  from  the  Baltic  to  the  Mediterranean.  No  other  coun- 
try then  produced  such  bold  navigators  and  reckless  warriors. 
They  did  not  engage  much  in  commerce,  but  were  generally 
pirates  and  ifreebooters.  At  home  they  were  little  less  fierce. 
Courage  and  hardihood  were  the  virtues  most  regarded,  and 
these  seem  to  have  been  possessed  in  an  unusual  degree  even 

450 


DENMARK.  SWEDEN  AND  NORWAY  451 

by  the  women,  some  of  whom  took  part  in  their  expeditions. 
In  early  times  there  were  petty  kings  in  each  district,  chosen 
as  leaders  by  the  .free  men,  with  little  real  power  over  their 
followers.  There  was  no  code  of  laws,  but  disputes  were  de- 
termined by  combat  or  by  the  freemen  in  their  assembly  in 
accordance  with  ancient  customs  and  advice  of  their  law- 
men.^ Distinctions  of  wealth  and  leadership  had  developed 
a  nobility  by  the  dawn  of  their  history,  but  without  destroying 
the  authority  of  the  freemen  assembled  in  their  things  over 
all  public  affairs. 

It  is  said  that  Gorm  the  Old,  who  flourished  between  860 
and  936,  was  the  first  to  extend  his  authority  over  all  Den- 
mark including  Schleswig,  Holstein,  Skania  and  part  of  Nor- 
way. A  little  earlier  Harold  Fairhair  had  subdued  all  the 
petty  kings  in  Norway  and  placed  the  fylkis  or  shires  under  his 
earls  and  the  herads,  (subdivision  of  the  fylkis),  under  his 
lendermenn.  The  date  and  extent  of  the  domination  af  the 
early  Swedish  kings  is  so  interwoven  with  the  mythical  that 
it  is  impossible  to  say  much  with  certainty.  Eric  who  ruled 
in  the  tenth  century  is  said  to  have  extended  his  power  over 
Denmark  and  his  son  Olaf,  who  succeeded  him  in  993,  was 
the  first  Christian  king  of  Sweden,  having  been  baptized  about 
A.D.  1000.  These  were  times  of  almost  ceaseless  war,  and 
no  compact  and  efiicient  system  of  government  was  established 
by  any  of  them.  The  name  of  Cnut,  the  Dane,  stands  out 
prominently  in  history  because  of  his  conquests  in  England 
about  1 01 8.  He  extended  his  power  over  Norway  also  and 
into  Sweden.  Tradition  mentions  earlier  rulers  over  the  Scan- 
dinavian races,  the  greatest  of  whom  was  Odin,  reputed  a 
Scythian  chief,  who  extended  his  power  from  his  native  land 
in  the  Russian  steppes  to  Sweden  and  Norway,  and  introduced 
to  the  people  the  religion  and  institutions  of  his  ancestors.  His 
kingdom  is  said  to  have  included  not  only  all  Denmark,  Swe- 
den and  Norway  but  much  of  the  country  lying  along  the  line 
of  his  march  from  his  native  land.  There  are  many  points  df 
similarity  in  the  customs  of  the  pagan  Scandinavians  and  those 
of  the  ancient  Scythians,  and  there  appears  good  ground  for 

^  Continental  Legal  History  Series,  Vol,  i,  p.  535. 


452  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

believing  that  they  were  carried  into  the  north  by  Scythian  in- 
vaders. Odin  the  leader  seems  to  have  been  translated  into 
Odin  the  god  of  v^arriors,  and  to  have  become  the  principal 
deity  of  northern  nations.  Frigga,  the  earth,  daughter  and 
wife  of  Odin,  and  Thor,  first  born  son  of  Odin  and  Frigga, 
were  the  leading  deities  worshipped,  and  not  only  animals  but 
human  beings  were  sacrificed  to  propitiate  them.  It  was  the 
fashion  of  northern  rulers  to  trace  descent  from  Odin  and  to 
fortify  their  claims  to  authority  'by  the  superstitious  veneration 
;for  the  supposed  gods.  Odin  is  said  to  have  established  his 
power  and  residence  in  Sweden  about  70  B.C.,  and  the  dynasty 
he  established  to  have  continued  till  630  A.D.  The  reigns  of 
Odin  and  his  immediate  successors  are  described  in  the  tradi- 
tions as  peaceful  and  prosperous  and  are  accepted  as  a  golden 
age  of  prosperity.  Little  can  be  told  with  any  fair  degree  of 
certainty  of  those  early  times. 

The  system  of  laws  prevailing  throughout  the  Scandinavian 
countries  in  the  time  of  Cnut  imposed  fines,  definitely  fixed  for 
each  offense  from  murder  down,  graded  according  to  the  rank 
of  the  injured  party.  For  an  injury  to  the  person  of  a  high 
nobleman  the  fine  was  twelve  times  as  much  as  in  case  of  an 
ordinary  freeman.  For  theft  the  fine  was  generally  triple 
value  oif  the  stolen  article.  The  modes  of  trial  allowed  the 
accused  to  clear  himself  by  the  oaths  of  compurgators,  swear- 
ing that  they  believed  him  innocent.  Judicial  combat  was 
a  recognized  mode  of  trial,  as  were  those  by  ordeal  of  fire 
or  water.    Trial  by  jury  was  also  allowed. 

On  the  death  of  Cnut  his  dominions  were  divided  between 
his  three  sons.  The  history  of  the  following  century  is  filled 
with  the  wars  of  rival  claimants  of  kingly  power.  While  these 
claimants  fought,  Wendish  pirates  pillaged  the  people,  who  for 
their  protection  entered  into  an  association  for  their  mutual 
defense,  built  ships,  manned  them  and  captured  many  of  the 
pirates.  Here  was  the  spectacle  of  war  and  discord  among 
princes  and  an  assumption  off  the  function  of  protecting  them- 
selves from  external  foes  by  the  people.  After  long  and  deso- 
lating civil  war  Valdemar  overcame  his  rivals.  Prior  to  his 
reign  all  freemen  had  been  permitted  to  come  to  the  national 


DENMARK,  SWEDEN  AND  NORWAY  453 

council  armed,  but  in  his  time  the  clergy  and  the  nobles  took 
away  this  privilege,  and  the  peasantry  of  Denmark  and  Sweden 
lost  most  of  their  political  rights. 

Valdemar  II  of  Denmark  made  conquests  in  the  east  but  was 
unable  to  hold  them,  and  the  city  of  Lubec  succeeded  in  freeing 
itself  from  his  rule.  After  the  loss  of  much  of  his  foreign 
possessions  Valdemar  caused  a  general  survey  to  the  made  olf 
his  kingdom.  The  provinces  were  divided  into  Episcopal  dio- 
ceses, which  were  subdivided  into  parishes  and  small  districts, 
from  each  of  which  a  fixed  contribution  of  men  and  ships  for 
the  defense  of  the  country  was  required.  To  remedy  the  con- 
fusion in  the  law  occasioned  by  the  charters  of  cities,  by  which 
they  had  been  granted  the  right  to  administer  the  law  in 
their  own  courts,  the  royal  guilds ;  the  claims  of  the  clergy  of 
exemption  from  secular  power  and  the  study  of  the  Roman 
civil  law,  Valdemar  convened  in  1240  a  national  assembly,  at 
which  was  promulgated  what  was  intended  as  a  code  of  laws 
for  the  whole  kingdom,  called  the  Jutland  law.  By  this  time 
feudalism  had  made  its  way  into  Denmark,  the  local  assemblies 
of  freemen  were  no  longer  held,  but  were  superseded  by  the 
A  del-Ting  or  Herredag,  an  assembly  to  which  only  the  princes, 
prelates  and  nobility  were  admitted.  The  peasantry  had  been 
generally  compelled  to  place  themselves  under  some  feudal  lord 
and  thereby  lose  their  independence.  The  national  diet  was 
convened  annually  at  Nyborg.  During  its  recess  the  govern- 
ment was  administered  by  the  king  and  his  council,  composed 
of  the  leading  nobles  and  officers  of  the  kingdom.  The  marked 
change  which  had  occurred  consisted  in  the  development  of  a 
class  of  land  holding  nobles,  who  shared  political  jx>wer  with 
the  king  to  the  exclusion  of  the  great  body  of  the  freemen 
who  formerly  met  in  the  Lands  Ting. 

On  the  death  of  Valdemar  II  Eric  succeeded  and  fought 
with  his  brothers  who  refused  bomage  for  their  fiefs,  and 
then  led  an  expedition  into  Esthonia :  on  returning  from  which 
he  was  assassinated.  Christopher's  reign  was  noted  for  a 
controversy  with  the  church,  resulting  in  an  interdict  against 
his  kingdom  for  seizure  and  imprisonment  of  the  bishop  of 
Lund.     Eric  VII,  Crippling,  had  bloody  wars,  in  which  many 


454  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  his  subjects  perished  in  a  contest  with  the  duke  of  Schleswig 
and  his  alHes  over  the  possession  of  the  crown,  followed  by 
further  controversy  with  the  church  over  the  right  to  control 
appointments  to  clerical  offices,  and  was  at  last  murdered  in 
his  chamber  (1287).  During  his  reign  the  nobles  extorted 
from  him  a  charter  defining  their  privileges  and  the  limits  df 
royal  authority,  which  thereafter  was  renewed  by  succeeding 
monarchs.  He  also  granted  charters  to  several  towns  and 
made  general  regulations  for  municipal  bodies.  Eric  VIII 
warred  with  Norway,  where  the  murderer  of  his  father  re- 
ceived protection,  and  the  controversy  with  the  papal  power 
was  renewed.  Then  followed  a  barbarous  warfare  with  his 
younger  brother  over  his  right  to  certain  fiefs. 

Christopher  II  on  his  election  by  the  diet  in  13 19  was  re- 
quired to  sign  a  declaration;  That  the  bishops  and  all  other 
members  of  the  Holy  Church  should  freely  enjoy  their  rights 
and  liberties,  property  and  vassals,  as  formerly,  and  should  be 
entirely  exempted  from  taxes  and  the  secular  jurisdiction: 
That  no  ecclesiastical  person  should  be  arrested,  exiled  or 
deprived  of  his  goods,  without  the  Pope's  bull,  if  a  bishop, 
and  if  an  inferior  clerk,  only  by  the  regular  sentence  of  his 
canonical  judge :  That  the  chiefs  should  have  feudal  juris- 
diction over  their  estates  to  the  extent  of  amercing  in  small 
penalties  according  to  the  custom  of  each  province,  and  that 
the  king  should  not  make  war  without  the  advice  and  consent 
of  the  prelate  and  principal  men  of  the  kingdom :  That  the 
burghers  should  enjoy  their  freedom  and  not  be  subject  to 
any  new  toll  or  tax  without  consent  of  the  diet :  That  the 
merchants  should  be  repaid  the  sums  borrowed  from  them 
by  the  king  or  his  bailiffs :  That  no  impost  should  be  laid 
on  the  free  peasantry  contrary  to  the  established  laws  and 
customs :  That  a  parliament  should  be  held  annually  at 
Viborg:  That  no  man  should  be  imprisoned  or  deprived  of 
life  or  property  without  public  trial  and  conviction  before  the 
proper  courts  and  with  the  right  of  appeal  to  the  highest  trib- 
imal :  That  plundering  shipwrecked  vessels  should  be  pun- 
ished :  That  no  law  should  be  enacted  except  by  parliament, 
and  that  the  king  alone,  with  the  advice  of  the  nobles  and  pre- 


DENMARK,  SWEDEN  AND  NORWAY  455 

lates,  should  have  power  to  change  the  above  rules.  Christo- 
pher lavished  grants  of  lands  on  his  favorites.  He  was 
rewarded  for  his  generosity  with  revolts  and  driven  from  his 
kingdom,  which  he  vainly  ifought  to  recover  and  died  after 
fourteen  years  of  turmoil.  The  king  had  lost  his  power.  The 
turbulent  feudal  lords  and  the  rising  towns  of  the  Hanseatic 
league  dominated  the  country.  His  death  was  followed  by  a 
period  of  turmoil.  Valdemar  IV,  who  after  some  delay  was 
elected  king,  had  both  civil  and  foreign  wars  which  brought 
misery  on  the  people. 

During  the  period  we  have  just  considered  the  course  of 
events  in  Norway  was  far  from  peaceful.  Sverre  in  1202 
after  a  long  struggle  took  the  throne  from  the  youthful  Mag- 
nus V.  Having  gained  the  crown  by  the  sword,  he  had  to 
fight  to  keep  it.  Having  incurred  the  displeasure  of  the  Pope, 
his  kingdom  was  laid  under  an  interdict.  He  died  after  twen- 
ty-five years  of  strife.  After  three  brief  reigns  came  that  of 
Hakon,  who  also  had  to  fight  to  maintain  his  authority.  His 
last  important  undertaking  was  a  disastrous  expedition  to  Scot- 
land. Magnus  VI  became  king  in  1263.  He  granted  charters 
to  Bergen  and  Trondheim  and  made  regulations  for  their  mu- 
nicipal affairs,  trade  guilds  and  fraternities.  He  also  compiled 
a  general  code  of  civil  and  criminal  laws,  which  was  accepted 
by  the  people  assembled  in  the  Gida  Ting  in  1274.  It  provided 
for  an  annual  Law  Ting  at  each  chief  town  of  the  kingdom, 
presided  over  by  a  judge  and  attended  by  a  panel  of  jurors. 
Trial  by  battle  and  ordeal  had  already  been  abolished,  and  two 
witnesses  were  required  to  establish  a  crime.  Compurgators 
were  still  allowed.  The  kingdom  was  again  divided,  as  for- 
merly, into  marine  districts,  each  of  which  was  required  to 
furnish  its  quota  of  men  and  ships.  Beacon  stations  were 
established  on  the  heights,  by  which  signals  could  be  passed 
from  point  to  point  in  case  of  invasion.  Erik  married  the 
daughter  of  Alex  III  of  Scotland,  and  involved  his  country  in 
a  fierce  and  profitless  war  with  the  Danes  in  defense  of  the 
murderers  of  Eric  Crippling.  Hakon  made  war  on  the  king 
of  Sweden  to  avenge  the  murder  of  his  son-in-law.  As  a  result 
Magnus  Senek  was  placed  on  the  Swedish  throne  and  after- 
ward succeeded  to  that  oif  Norway  also. 


456  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

In  Sweden  slavery  was  abolished  by  King  Magnus  in  1335. 
Margaret  was  chosen  their  first  queen  by  the  Danes  and  Nor- 
wegians. War  followed  with  Albert  of  Sweden,  and  he  was 
taken  prisoner.  In  1397  there  was  assembled  at  Calmar  dele- 
gates from  the  diets  of  Denmark,  Sweden  and  Norway,  who 
joined  in  choosing  Eric  king  of  the  three  countries.  Articles 
of  union  were  agreed  on,  by  which  the  three  countries  became 
united  under  the  same  sovereign  and  his  male  issue,  choice  of 
sons  to  be  made  by  the  representatives  of  the  kingdoms,  but 
each  kingdorri  was  to  be  governed  by  its  own  laws.  The  Han- 
seatic  league,  then  flourishing,  was  confirmed  in  its  privileges 
in  the  towns  of  the  three  kingdoms.  Eric  entered  into  war 
over  Schleswig,  which  at  length  involved  the  German  emperor 
and  the  intervention  of  the  Pope.  He  made  a  pilgrimage  to 
the  Holy  Land,  leaving  his  wife  as  regent.  He  had  wars  with 
the  Hanse  towns,  which  wasted  the  country  and  finally  resulted 
in  a  treaty  confirming  the  commercial  privileges  of  the  league. 
The  Swedes  rebelled  against  Eric's  misrule  and  civil  war  fol- 
lowed, which  was  terminated  through  the  intercession  of  the 
bishops,-  who  this  time  were  peacemakers.  Eric  provoked  re- 
volt and  war  again  ensued,  followed  by  another  congress  at 
Calmar,  at  which  the  election  df  a  successor  to  the  throne  was 
confided  to  a  college  of  one  hundred  and  twenty  delegates, 
forty  from  each  state,  to  include  representatives  of  the  pre- 
lates, judges,  burgomasters  and  free  peasants.  Complaints 
against  Eric's  rule  finally  resulted  in  the  choice  of  Christopher 
as  his  successor,  and  Eric  became  a  pirate. 

The  peasants  of  Jutland  revolted  against  the  high  taxes  and 
oppression  of  the  nobles,  but  their  resistance  was  overcome  in 
the  usual  manner.  Christopher  made  unsuccessful  war  on  the 
Hanse  towns.  Christian  was  chosen  king  by  the  Danish  nobles 
and  then  by  the  Norwegians,  but  Knutson  was  named  by  the 
Swedes,  each  acting  separately.  War  followed ;  Knutson  was 
defeated  and  driven  out  and  Christian  recognized  as  king  of 
Sweden.  Another  revolt  headed  by  the  archbishop  of  Upsala 
again  placed  Knutson  on  the  throne,  from  which  he  was  again 
deposed.  On  his  death  Sten  Sture  received  the  support  of  the 
national  diet  df  Sweden  and  defeated  the  Danes  in  a  great 


DENMARK,  SWEDEN  AND  NORWAY  457 

battle.  In  1478  the  university  of  Copenhagen  was  founded 
and  that  of  Upsala  in  Sweden  soon  afterward. 

John,  having  been  chosen  by  the  Danes  and  Norwegians, 
invaded  Sweden  to  enforce  submission  there  and  finally  ob- 
tained their  recognition.  In  an  attempt  to  subjugate  Deth- 
marschen  he  met  with  a  signal  defeat  by  the  free  peasants,  in 
which  great  numbers  of  the  Danish  nobles  were  killed.  Re- 
volts again  occurred  in  Sweden,  and  his  authority  was  resisted 
during  the  balance  of  his  reign.  Norway  also  rebelled  but  was 
reduced  to  submission.  In  his  contests  with  the  Swedes  and 
their  allies,  the  Hanse  towns,  the  war  degenerated  into  pil- 
laging expeditions.  The  barbarity  exhibited  was  extreme. 
Christian  II  came  to  the  throne  in  1573.  The  Swedes  resisted 
his  authority,  and  he  called  to  his  aid  the  clergy  and  the  sol- 
diers. Under  the  name  of  authority  and  religion  the  grossest 
barbarities  were  committed.  Having  overcome  the  opposition, 
partly  by  force  and  partly  by  promise,  he  was  crowned  at 
Stockholm.  At  the  close  of  the  court  festivals  he  seized  the 
leaders  who  had  opposed  him,  and  to  whom  he  had  solemnly 
promised  amnesty,  and  on  the  demand  of  a  churchman  for 
justice  against  his  enemies  he  turned  them  over  to  an  ecclesias- 
tical court  for  trial.  They  were  condemned  the  next  day,  and 
on  the  pretense  that  he  as  king  could  not  shield  them  from 
punishment  for  heresy,  on  Nov.  8th,  1520  a  great  number  of 
the  leading  men  of  the  kingdom  were  butchered.  The  Pope's 
agent  was  encouraged  in  his  trade  of  selling  indulgences,  from 
which  he  realized  large  sums  from  all  factions. 

Gustavus  Vasa,  son  of  one  of  the  murdered  men,  after  wan- 
dering from  place  to  place  took  refuge  with  the  poor  but  free 
Dalecarlian  mountaineers,  whom  he  incited  to  a  revolt  which 
gained  in  force  till  with  the  aid  oif  the  Hanseatic  League  the 
Danes  were  driven  from  Sweden.  In  Denmark  Christian  ex- 
cited the  hostility  of  the  nobles  by  forbidding  the  sale  of  serfs 
and  allowing  them  to  change  their  masters,  by  prohibiting 
wreckers  from  seizing  shipwrecked  goods  and  in  lieu  appoint- 
ing bailiffs  to  save  and  return  them  to  the  owners  on  payment 
of  salvage.  The  nobles  revolted  and  Christian  left  the  king- 
dom. Gustavus  Vasa  was  then  elected  to  the  throne  of  Sweden 
by  the  diet  and  became  the  founder  of  a  famous  dynasty. 


458  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

Frederick  succeeded  to  the  thrones  of  Denmark  and  Nor- 
way. Alfter  a  time  the  dethroned  Christian  succeeded  in 
raising  a  revolt  in  Norway  and  involving  the  people  in  war, 
but  he  was  taken  prisoner  and  spent  the  next  twelve  years  of 
his  life  in  a  dungeon  of  the  castle  of  Sonderborg,  and  then 
was  removed  to  that  of  Kallundborg.  Christian  III  came  to 
the  Danish  and  Norweigan  throne  in  1533.  The  reformation 
took  early  hold  in  Denmark,  and  religious  strife,  revolts  of  the 
peasantry  and  many  other  internal  disorders  occurred.  Chris- 
tian adopted  the  reformed  faith,  took  away  all  temporal  power 
from  the  clergy  and  confiscated  the  church  property.  The 
blow  at  the  clergy  was  accompanied  by  a  confirmation  of  the 
privileges  of  the  lay  nobility.  Sweden  also  threw  off  its  sub- 
mission to  the  sway  of  the  clergy  and  took  side  with  Luther. 
Under  Gustavus  Vasa  Sweden  enjoyed  a  degree  of  peace  and 
prosperity  it  had  not  known  (for  many  generations.  He  died  in 
1560  and  was  succeeded  by  Eric  his  son.  His  rule  was  in 
striking  contrast  to  that  of  his  father.  He  was  fickle,  wasteful 
and  plunged  into  needless  wars  at  home  and  abroad,  from 
which  the  people  sufTered  more  than  the  usual  miseries.  At 
last  they  rose,  deposed  him  and  elected  John  in  his  place  in 
1568,  who  had  war  with  Denmark  and  with  Russia,  from 
which  no  good  resulted.  Frederick  H  of  Denmark  made  cruel 
war  on  the  valiant  Dithmarschen  peasants,  whom  he  attacked 
with  an  overwhelming  force  and  ruthlessly  slaughtered.  Then 
followed  long  and  wasting  war  with  Sweden,  the  pretext  for 
which  was  the  wearing  by  the  Danish  monarch  in  his  coat  of 
arms  of  the  triple  crown,  implying  sovereignty  over  Sweden, 
the  independence  of  which  had  been  established.  The  war 
ended  with  the  loss  of  his  crown  by  Eric  of  Sweden.  The 
peace  negotiated  with  King  John  did  not  last  and  more  fight- 
ing followed  till,  weary  off  war,  a  new  treaty  was  made. 
Frederick  was  a  Lutheran  and  persecuted  all  of  other  faiths 
with  the  zeal  and  intolerance  which  characterized  the  times. 
Sigmund,  son  of  John  of  Sweden,  having  been  chosen  King  of 
Poland,  succeeded  on  the  death  of  his  father  to  that  of  Swe- 
den. He  was  a  Catholic  and  his  subjects  Protestants.  Duke 
Charles,  son  of  Gustavus  Vasa,  was  made  regent.     Religious 


DENMARK,  SWEDEN   AND   NORWAY  459 

differences  resulted  in  civil  war.  Sigmund  was  deposed  and 
Charles  made  king. 

Christian  IV  ascended  the  Danish  throne  at  the  age  of 
twelve.  After  reaching  his  majority  he  took  an  active  interest 
in  promoting  good  government,  especially  in  Norway,  and 
made  a  voyage  around  the  north  cape  into  the  White  Sea. 
Then  disputes  with  Charles  of  Sweden  and  war  followed, 
which  was  continued  after  the  death  oif  Charles  by  his  son, 
Gustavus  Adolphus.  After  great  suffering  by  both  parties  a 
peace  was  concluded.  Gustavus  waged  successful  war  against 
Poland,  in  which  he  gained  great  glory  and  great  numbers  of 
his  people  lost  their  lives.  At  a  meeting  of  the  Saxon  states 
at  Lauenburg  in  1625,  while  the  Thirty  Years'  war  was  in 
progress,  Gustavus  was  chosen  captain  general  of  the  confed- 
erate army  of  Danes,  Germans,  Scotch,  English  and  Swedes. 
His  brilliant  career  in  that  memorable  war  ended  with  his  life 
in  1632  on  the  hard  fought  field  of  Lutzen.  As  a  result  of  this 
war  the  power  and  territory  of  Sweden  were  greatly  increased, 
though  at  a  fearful  cost  df  life  and  property  to  the  people. 

In  Denmark  power  and  landed  property  had  steadily  cen- 
tered in  the  hands  of  a  few,  till  the  national  assembly  was  no 
longer  convened,  and  a  few  great  lords  dominated  in  the  coun- 
cils of  the  state.  In  1660  Frederick  convened  the  national  diet, 
to  which  the  nobles,  the  clergy  and  deputies  from  the  towns 
were  summoned,  but  there  was  no  longer  a  free  peasantry  to 
be  called.  Norway  was  not  called  on  for  representatives.  At 
this  diet  the  crown  was  made  hereditary,  and  the  king  absolved 
from  the  ancient  limitations  of  his  authority  in  favor  of  the 
nobility.  The  great  lords  were  forced  to  swear  ifealty  to  the 
hereditary  and  unlimited  monarch.  This  was  one  of  the  most 
remarkable  revolutions  in  history  and  completely  changed  the 
character  of  the  Danish  government,  from  one  in  which  each 
king  had  been  forced  at  his  accession  to  ix)wer  to  swear  to 
observe  the  very  extensive  privileges  of  the  nobility,  leaving 
him  little  more  than  a  nominal  ruler,  to  an  absolute  monarchy 
in  which  the  king  engrossed  all  executive,  legislative  and  ju- 
dicial powers  and  was  raised  above  the  law,  save  that  the  order 
of  succession  to  the  throne,  which  the  king  was  authorized  to 


46o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

establish,  could  not  thereafter  be  changed.  This  gave  to  the 
king  power  to  crush  the  great  nobles,  whose  counsel  he  was  no 
longer  required  to  take,  and  to  fill  all  offices  with  persons  of 
his  own  selection,  devoted  to  his  interests.  The  motive  for  the 
change  influencing  the  clergy  and  lower  orders  in  the  diet  was 
to  obtain  relief  from  the  tyranny  of  the  oligarchy,  who  were 
exempt  from  public  burdens  while  owning  a  great  share  olf  the 
land.  The  union  of  the  multitude  in  support  of  a  single  head 
of  the  state  in  order  to  overthrow  an  obnoxious  oligarchy  is 
not  unprecedented,  but  no  other  instance  is  recalled  where 
absolute  hereditary  power  has  been  deliberately  conferred  in  a 
time  of  peace.  Christian  V,  soon  after  coming  to  the  Danish 
throne,  took  advantage  of  the  war  in  which  Charles  XI  of 
Sweden  had  engaged  with  the  elector  of  Brandenburg  to  attack 
the  now  most  dreaded  foe  of  Denmark.  The  Danes  and  their 
allies  were  at  first  successful  by  sea  and  land,  but  the  youthful 
Charles  at  last  took  the  field  and  delfeated  them.  After  many 
battles  with  varying  fortunes  a  peace  was  concluded,  which 
left  both  parties  with  the  same  possessions  as  at  the  beginning 
of  the  war. 

In  Sweden  Charles  convoked  a  diet  in  1680  for  the  purpose 
of  remodeling  the  government,  as  a  result  of  which  a  new 
board,  called  the  Grand  Commission,  was  established  with 
power  to  inquire  into  the  transactions  of  the  ministers  and  pun- 
ish the  usurpations  of  the  senators.  Steps  were  also  taken  to 
recover  grants  of  royal  domains  from  the  great  nobles,  to 
whom  they  had  passed  by  grant  or  mortgage,  on  repayment 
of  the  original  price  paid  the  crown  for  them.  Another  diet, 
convened  the  following  year,  gave  the  king  authority  to  change 
the  constitution.  This  change  was  promoted  by  the  same  in- 
fluences as  those  which  changed  the  Danish  constitution.  In 
1693  ^"  ^ct  was  passed  which  in  terms  made  the  king  absolute 
and  authorized  him  to  govern  the  realm  according  to  his  will 
and  pleasure  without  being  accountable  to  any  earthly  power. 

Charles  XII,  1697,  was  a  minor  of  fifteen  years  at  his 
father's  death,  but  notwithstanding  the  will  of  his  father, 
which  extended  his  minority  to  eighteen,  in  six  months  he 
assured  the  exercise  of  the  unlimited  kingly  powers.     He  was 


DENMARK,   SWEDEN  AND  NORWAY  461 

.■>oon  involved  in  w^ar  with  a  combination  formed  by  Denmark, 
Saxony  and  Prussia.  He  met  this  formidable  array  with  such 
marvelous  courage,  energy  and  success,  as  to  challenge  the 
admiration  of  all  Europe  and  raise  him  to  the  first  rank  of 
military  heroes.  Not  waiting  for  the  allies  to  combine  their 
forces,  he  at  once  assumed  the  offensive,  attacked  and  crushed 
Denmark  first,  then  sailed  over  the  Baltic,  landed  at  Pernau 
on  the  Gulf  of  Riga,  attacked  the  poorly  equipped  and  undisci- 
plined Russians  and  destroyed  army  aifter  army,  far  exceeding 
his  own  in  numbers.  Having  disposed  of  the  Russian  armies, 
he  turned  upon  the  Saxons  and  passing  through  Lithuania  he 
entered  Poland,  took  Warsaw  and  Cracow,  deposed  the  Saxon 
Augustus  and  caused  the  election  of  Stanislaus  in  his  place. 
Thence  he  marched  into  Saxony  and  the  imperial  domains. 
Augustus  was  forced  to  sue  for  peace  and  make  such  terms  as 
the  victorious  Charles  saw  fit  to  impose.  These  required  the 
renunciation  of  the  crown  of  Poland  and  the  abrogation  of 
his  treaty  with  the  Czar.  After  resting  a  while  in  Saxony, 
during  which  he  drilled  and  perfected  his  army,  Charles  en- 
tered on  the  task  of  invading  Russia  and  overthrowing  the 
Czar.  Peter  had  not  been  idle,  but  had  profited  by  the  bitter 
experience  of  former  defeats  and  devoted  his  attention  to  the 
improvement  of  his  army.  Charles  advanced  but  encountered 
stubborn  resistance  and  an  exceptionally  severe  Russian  winter. 
Instead  of  pushing  on  toward  Moscow,  he  turned  to  the  south 
and  passed  through  the  Ukraine  to  join  iforces  with  the  Cos- 
sack chief,  Mazeppa,  whom  he  expected  to  join  him  with  a 
force  of  30,000.  Instead  of  Cossacks  he  was  met  by  Russians. 
After  suffering  heavy  losses  from  the  severity  of  the  weather 
and  the  want  of  supplies,  as  well  as  from  frequent  engage- 
ments, in  the  summer  of  1709  he  again  attempted  to  force  his 
way  to  Moscow  with  the  remnant  of  his  once  splendid  army. 
Peter  met  him  at  Pultowa  on  July  8  with  70,000  men,  and, 
though  he  fought  obstinately,  overwhelming  numbers  decided 
the  day  and  the  Swede's  army  was  destroyed.  With  a  small 
band  of  horsemen  Charles  made  his  escape  into  the  Turkish 
domains,  where  he  remained,  supported  by  an  allowance  ifrom 
the  sultan,  whom  he  sought  to  induce  to  raise  an  army  with 


462  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

which  to  renew  the  contest.  Having  played  the  role  of  a 
most  troublesome  guest  to  the  Turks  till  Oct.  171 4,  Charles,  in 
company  with  only  two  officers,  started  back  to  the  north, 
reaching  Stralsund  safely  on  Nov.  21.  He  was  most  enthu- 
siastically received  by  the  army,  but  his  presence  was  not 
sufficient  to  enable  the  small  Swedish  garrison  to  resist  the 
combined  besieging  army  of  Danes  and  Prussians.  He  suc- 
ceeded in  escaping  in  a  boat,  just  as  the  town  capitulated,  and 
made  his  way  across  the  Baltic  into  Sweden.  Still  bent  on  con- 
quest, he  raised  a  new  army,  with  which  he  invaded  Norway. 
On  his  second  invasion  of  that  country  at  the  siege  of  Fred- 
erickhall  on  Dec.  11,  1718,  he  was  struck  by  a  ball  and  killed. 
The  career  of  Charles  affords  a  striking  example  of  the  mis- 
fortune it  is  to  a  kingdom  to  have  a  great  military  hero  for  a 
king.  It  also  illustrates  the  strange  infatuation,  which  causes 
the  multitude  to  applaud  and  follow  a  leader  who  marches  them 
to  destruction,  so  long  as  he  succeeds  in  gaining  battles  and  in- 
flicting greater  misery  on  his  enemies  than  his  own  troops 
suffer.  Had  Charles  been  content  to  make  peace  after  his  early 
wars,  which  though  carried  on  in  the  enemies'  country  were 
really  defensive,  he  might  have  claimed  to  be  a  protector  of 
his  people,  but  his  insane  thirst  ifor  conquest  caused  him  to 
drain  his  country  of  men,  to  be  killed  or  maimed  in  war  or  sold 
into  slavery  as  prisoners.  His  early  campaigns  brought  booty 
and  wealth,  but  loss,  disaster  and  poverty  alone  resulted  from 
the  later  ones.  The  great  mass  of  men  who  followed  him  to 
his  wars  never  returned  but  met  death  or  slavery.  The  people 
at  home  endured  the  misery  of  the  loss  of  friends,  the  sharp 
pinch  of  poverty  and  distress  resulting  from  the  destruction 
of  war.  Like  the  barbarous  idol  worshippers,  the  Swedes 
continued  to  worship  their  hero  and  to  furnish  him  victims 
by  tens  of  thousands.  Rejoicing  in  the  early  days  of  success  in 
the  destruction  and  misery  he  and  his  followers  caused  others, 
they  at  last  felt  a  ifull  measure  of  it  themselves.  This  is  in 
the  very  nature  of  war,  yet  savage  man  still  worships  the  war 
god  in  Christian  churches,  as  well  as  in  pagan  grove  or  temple, 
and  still  immolates  on  his  altar  the  bravest  and  strongest  of 
the  youths,  leaving  the  perpetuation  of  the  race  to  those  physi- 


DENMARK,  SWEDEN   AND  NORWAY  463 

cally  weaker  and  less  courageous.  By  this  system  the  race  of 
the  peaceful,  though  weak  and  defective,  is  preserved  and 
propagated,  while  the  more  warlike  element  is  destroyed. 

Ulrica,  younger  sister  of  Charles,  was  chosen  by  the  states 
to  be  his  successor,  but  she  was  required  to  renounce  all  claims 
to  despotic  power  and  all  hereditary  right  to  the  crown.  A  new 
constitution  in  forty  articles  was  framed,  which  provided 
among  other  things;  that  all  offices  of  trust  or  profit  should 
be  filled  by  the  native  nobility;  that  all  taxes  should  be  ap- 
proved by  the  assembly;  that  the  senate  should  manage  public 
affairs  in  the  absence  of  the  sovereign  and  in  case  of  a  vacancy, 
and  that  cities  and  towns  were  to  be  confirmed  in  their  corpor- 
ate rights.  This  constitution  was  accepted  by  the  queen.  The 
policy  of  the  new  reign  was  to  make  peace,  and  this  after  some 
delay  was  accomplished,  but  with  large  concessions  oif  territory 
to  Russia.  Ulrica  soon  abdicated  and  asked  the  election  of  her 
husband  Frederick  in  her  stead.  This  was  done  in  1720  with 
a  further  extension  of  the  guarantees  of  the  constitution.  The 
king  might  propose  laws,  but  the  legislative  power  was  vested 
in  the  states.  Sweden  enjoyed  the  blessings  of  peace  till  1741, 
when  bad  counsel  prevailed  in  the  diet,  and  war  was  again 
declared  against  Russia.  In  the  campaign  which  followed  the 
advantage  was  with  the  Russians,  and  the  Swedes  lost  Finland 
as  the  price  of  peace.  For  blood  and  treasure  wasted  there  was 
no  return  but  humiliation. 

In  Frederick  IV,  Christian  VI  and  Frederick  V,  Denmark 
found  peaceful  rulers,  who  devoted  their  energies  to  the  im- 
provement of  the  condition  of  their  subjects,  but  were  yet 
without  power,  and  perhaps  lacking  in  disposition,  to  do  justice 
to  the  peasants  and  poor,  who  still  submitted  to  the  grinding 
oppression  of  the  nobles. 

Sweden  again  became  involved  in  war  with  Frederick  of 
Prussia,  1755  to  1762,  but  the  drain  of  men  and  resources 
was  not  so  seyere  as  in  her  former  greater  struggles.  Gust- 
avus  III  ascended  the  throne  of  Sweden  in  1771.  He  delayed 
his  coronation  until  he  could  make  sure  of  the  fidelity  of  the 
soldiers,  when  he  threw  off  the  mask  and  refused  to  recognize 
the  constitution,  under  which  his  predecessor  had  been  sub- 


464  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

jected  to  the  dictation  of  the  nobihty,  and  assumed  dictatorial 
power.  The  diet  was  summoned,  and  with  the  army  at  his 
back  Gustavus  dictated  terms  to  them  and  required  the  mem- 
bers to  swear  to  support  his  constitution,  which  contained 
fifty-seven  articles  and  placed  all  executive  power  in  the  king. 
The  diet  was  still  retained,  composed  of  the  four  orders,  but 
the  king  ceased  to  be  dependent  on  its  will. 

Christian  VII,  a  weak,  narrow  minded,  dissolute  son  of  a 
very  worthy  man,  who  had  been  a  good  king,  came  to  the 
Danish  throne  in  1766.  His  accession  was  but  another  illus- 
tration of  the  evil  of  transmitting  power  by  inheritance,  and  of 
the  certainty  that  good  men  will  sometimes  have  bad  sons. 
Christian  traveled  abroad  and  brought  home  favorites,  chief 
among  whom  was  Struensee,  whom  the  king  found  practising 
medicine  at  Altona  and  took  into  such  favor  that  he  soon  ap- 
pointed him  prime  minister.  His  success  in  also  gaining  the 
confidence  olf  the  young  queen  led  to  his  destruction.  He  was 
arrested  and  tried,  if  a  proceeding  before  a  commission  of  his 
bitter  enemies  who  instigated  the  prosecution  can  be  dignified 
by  that  name,  and  condemned  to  death,  which  was  inflicted  in 
1772.  From  this  time  till  1784,  when  the  king's  son  Frederick 
was  associated  with  him  and  became  the  actual  ruler,  the  queen 
dowager  administered  the  government,  though  in  Christian's 
name.  The  young  prince  displayed  unexpected  talents  and  vir- 
tues. Through  the  stormy  period  of  the  French  revolution 
and  the  ensuing  wars  he  succeeded  in  maintaining  peace  till 
1 80 1,  when,  having  joined  Russia  and  Sweden  in  an  alliance 
to  protect  their  commerce  on  the  seas  against  searches  and 
seizures  by  Great  Britain,  the  Danish  fleet  was  defeated  before 
Copenhagen  with  heavy  loss  of  men  and  ships.  This  defeat 
was  followed  by  a  disruption  of  the  coalition  and  a  change  of 
policy  hostile  to  France.  In  Sweden  Gustavus  III  proceeded  to 
rule  without  summoning  the  diet,  till  impelled  to  do  so  in 
1772  in  consequence  of  a  memorial  of  the  nobles.  He  merely 
made  them  a  speech  and  dissolved  the  diet.  In  1787  he  joined 
the  Turks  in  waging  war  on  Russia,  but  officers  and  men  re- 
fused to  go  out  of  the  kingdom  to  wage  an  offensive  war, 
which  the  national  diet  had  not  sanctioned,  and  his  expedition 


DENMARK.   SWEDEN  AND  NORWAY  465 

into  Finland  ifailed.  The  diet  was  afterward  convened,  and 
Gustavus  proposed  a  change  in  the  constitution,  conferring  on 
the  king  the  power  to  declare  war  and  make  peace.  To  this 
the  clergy,  burghers  and  peasant  orders  assented,  but  the 
nobles  opposed  it.  Thereupon  Gustavus  caused  the  arrest  of 
the  refractory  nobles,  recognized  Levenhaupt,  president  of  the 
nobility,  as  authorized  to  give  assent  on  their  behalf,  and  he 
having  affixed  his  signature  to  the  act,  it  was  treated  as  duly 
concurred  in  by  all  the  orders.  The  king  then  abolished  the 
senate  and  in  its  place  appointed  a  council  divided  into  two 
departments,  one  composed  of  six  nobles  and  six  commoners 
constituted  the  supreme  judicial  tribunal,  the  other  of  eight 
nobles  and  four  commoners  had  cognizance  of  minor  matters. 
The  war  with  Russia  was  resumed  and  several  bloody  battles 
followed,  but  on  the  conclusion  of  peace  in  1790,  each  party 
was  left  with  the  same  territory  as  before  the  war.  Neither 
party  had  gained,  but  both  had  suffered  fiom  the  struggle. 
With  a  view  to  obtain  supplies  for  an  invasion  of  France, 
Gustavus  summoned  a  diet  to  meet  in  1 792  at  Gefle  on  the  Gulf 
of  Bothnia.  With  a  sufficient  military  force  to  overawe  all 
opposition  he  succeeded  in  obtaining  what  an  exhausted  coun- 
try could  furnish.  Shortly  thereafter  he  was  assassinated  at  a 
masked  ball.  His  brother  became  regent  and  ruled  in  peace 
during  the  minority  of  his  son,  who  mounted  the  throne  as 
Gustavus  IV.  Gustavus  conceived  a  bitter  hostility  to  Napo- 
leon, early  joined  the  British  in  the  coalition  against  him  and 
persisted  in  his  warlike  attitude  when  Russia  and  Prussia  had 
concluded  peace.  His  obstinacy  carried  him  so  far  as  to  cause 
a  rupture  with  Russia  and  Denmark.  He  attempted  an  inva- 
sion of  Norway  but  was  driven  out  and  in  1809  was  deposed. 
Charles  XHI  concluded  peace  with  Russia,  abandoning  all 
Finland.  In  181  o  the  French  Marshal  Bernadotte  was  named 
as  successor  to  the  Swedish  throne,  and  in  18 13  he  started  with 
20,000  Swedes  to  join  the  allies  against  Napoleon  and  his  ally 
Denmark  and  compelled  the  latter  to  cede  Norway  to  Sweden. 
He  then  invaded  Norway  and  forced  the  unwilling  people  to 
submit  to  Swedish  authority.  The  Danes,  having  been  on  the 
losing  side,  were  forced  to  submit  to  the  permanent  loss  of 


466  EVOLUTION  OF  GOVERXMEXTS  AX!D  LAWS 

Norway  and  ceased  to  be  a  prominent  power.  The  duchies  of 
Schleswig  and  Holstein  at  all  times  occupied  a  relation  to  the 
Danish  crown  different  from  that  of  other  provinces  and  had 
been  the  cause  df  many  wars.  In  1848  there  was  war  with 
Prussia  over  these  dutchies,  and  the  peace  of  1850  confirmed 
the  possession  of  Denmark,  but  in  1864  they  were  taken  from 
the  Danes  by  the  combined  forces  of  Austria  and  Prussia  and 
thereafter  retained  by  Prussia. 

The  modern  constitution  of  Denmark  was  drawn  up  by  an 
assembly  elected  for  that  purpose  in  1849  and  ratified  by  King 
Frederick  VII  in  1850.  It  provided  for  a  diet  of  two  houses, 
both  elective.  The  first,  called  the  Folksthing,  deals  with  the 
budget  and  general  affairs,  and  is  composed  of  one  member  for 
every  16,000  people,  elected  for  a  term  of  three  years.  The 
second  cham'ber,  called  the  Landsthing,  under  the  revision  of 
1866  consists  of  sixty-six  members,  twelve  df  whom  are 
named  by  the  king,  and  the  others  are  elected  for  terms  of 
eight  years  by  districts.  Its  functions  are  confined  to  local 
matters.  The  king  is  the  executive  head  and  is  assisted  by  a 
privy  council.  In  its  educational  system  Denmark  takes  high 
rank.  It  is  directed  by  a  royal  commission,  composed  of  a 
president  and  four  assessors,  who  appoint  the  professors  at  the 
university  of  Copenhagen  and  all  teachers  of  grammar  schools. 
Attendance  at  the  schools  is  compulsory,  and  nearly  all  can 
read  and  write.  Lutheran  is  the  religion  of  State  and  con- 
firmation is  compulsory.  Denmark  is  still  afBicted  with  class 
distinctions  and  an  hereditary  aristocracy  with  an  undue  share 
of  wealth  and  exemption  from  taxes  and  burdens.  The  per- 
petuation of  the  aristocratic  class  is  fortified  by  the  law  df 
primogeniture,  and  other  traces  of  the  feudal  system  still  abide 
there.  On  the  whole,  however,  Denmark  has  gained  far  more 
in  the  last  century  from  a  more  useful  government  than  it  did 
from  a  more  powerful  one  in  former  years. 

The  union  of  Norway  and  Sweden  was  recognized  by  the 
congress  of  Vienna  in  1814  and  maintained  till  the  peaceful 
separation  in  1905.  Since  the  fall  of  Napoleon,  Sweden  and 
Norway,  so  long  given  over  to  almost  ceaseless  wanfare,  have 
enjoyed  a  long  period  of  peace  and  growing  prosperity.     The 


.DENMARK,  SWEDEN   AND  NORWAY  467 

two  countries  were  united  under  one  king  in  accordance  with 
the  Riksact  of  181 5,  which  left  each  free  from  the  other  as 
to  all  internal  affairs,  their  foreign  relations  only  being  joint; 
both  being  under  the  same  king,  as  executive  head,  and  bound 
to  defend  each  other  in  case  of  war.  Bernadotte  ruled  Sweden 
and  Norway  under  the  style  of  Charles  XIV  from  18 18  till 
1844.  He  devoted  much  of  his  energy  to  internal  improve- 
ments and  those  useful  duties,  which  tend  to  the  coni'fort  and 
happiness  of  the  people  instead  of  their  destruction.  No  ma- 
terial change  was  effected  in  the  internal  constitution  df  Swe- 
den, either  on  its  union  with  Norway  or  during  his  reign.  In 
1866  the  constitution  was  amended  and  a  diet  established,  con- 
sisting of  two  chambers,  one  elected  for  nine  years  by  the 
provincial  assemblies  and  towns,  and  the  other  for  three  years 
by  vote  of  all  natives  pHDSsessing  the  required  property  quali- 
fication. The  executive  power  is  vested  in  the  king,  acting 
under  the  advice  of  a  council  of  ministers,  who  are  responsible 
to  the  diet.  Legislation  may  be  initiated  either  by  the  king  or 
the  diet,  but  must  be  concurred  in  by  both.  The  council  of 
state  consists  of  ten  members,  seven  of  whom  are  respectively 
the  heads  of  the  several  departments  of  justice,  foreign  affairs, 
army,  navy,  internal  affairs,  finance  and  ecclesiastical  and 
school  affairs.  The  Riksdag  annually  appoints  a  board  to  ex- 
amine the  record  of  the  proceedings  of  the  council  and  with 
power  to  indict  them  before  the  Rikratt.  The  Riksdag  meets 
annually.  To  be  eligible  to  the  upper  house  a  person  must  be 
thirty-five  years  old,  own  land  worth  80,000  crowns  or  have 
paid  taxes  on  an  annual  income  oif  1000  crowns.  Members  of 
the  upper  house  serve  without  pay,  but  members  of  the  lower 
house  receive  1200  crowns  per  year,  and  are  chosen  by  voters 
possessed  of  a  property  qualification  of  the  value  of  1000 
crowns  or  farm  lands  worth  6000  crowns,  or  who  pay  taxes 
on  an  income  of  800  crowns.  All  electors  are  eligible  to  the 
lower  house.  Sweden  is  divided  into  twenty-four  counties 
with  representative  local  governments,  which  levy  local  taxes 
and  regulate  local  affairs.  The  judicial  system  consists  of 
courts  of  three  grades,  i.  The  haradsratter  consisting  of  a 
judge  and  seven  to  twelve  assessors  elected  by  the  people,  in 


468  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

which  the  assessors,  if  unanimous,  may  decide  contrary  to>  the 
opinion  of  the  judge.  In  the  towns  there  are  radhiisratter, 
boards  of  magistrates.  2.  Three  ho f ratter  (higher  courts)  in 
Stockholm,  Jonkoping  and  Christanstad  and  3.  the  Supreme 
Royal  Court,  two  members  of  which  attend  sessions  of  the 
council  when  questions  of  law  are  settled.  Jury  trials  are  not 
allowed  except  in  cases  relating  to  the  liberty  of  the  press. 
The  educational  system  is  of  a  high  order.  Attendance  of 
the  schools  is  compulsory.  The  universities  of  Upsala  and 
Lund  are  flourishing  institutions  of  high  rank. 

On  the  acceptance  of  the  union  of  Norway  with  Sweden  by 
the  Storthing,  the  Norwegian  representative  assembly,  the  king 
sanctioned  the  constitution  made  at  Eidwald  on  May  17,  1814,. 
and  promised  that  no  change  in  it  should  be  made  without  the 
consent  of  the  Storthing.  The  fundamental  law  of  Norway 
consists  of  1 12  articles  and  made  it  an  hereditary  constitutional 
monarchy  with  the  same  king  and  the  same  rules  of  succession 
as  those  of  Sweden.  The  constitution  required  the  king  to 
take  the  following  oath  before  the  Storthing:  'T  promise  and 
depose  that  I  will  govern  the  kingdom  of  Norway  conformable 
to  its  constitution  and  laws,  so  help  me  God  and  His  holy 
writ."  The  cabinet  is  to  consist  of  Norwegians  only,  who 
"shall  carry  on  the  government  in  the  name  and  on  behelf  of 
the  king,"  three  of  whom  shall  constantly  attend  the  king 
while  in  Sweden.  The  ministry  are  accountable  to  the  Storth- 
ing. The  organization  of  the  Strothing  is  peculiar.  It  is  di- 
vided into  two  bodies,  a  Lagting  and  an  Odelsting.  The  mem- 
bers of  both  are  elected  by  districts  merely  as  members  of  the 
Storthing,  and  the  whole  body  selects  from  its  members  one- 
fourth  its  number,  who  constitute  the  Lagting,  the  other  three 
fourths  constituting  the  Odelsting.  All  bills  are  first  intro- 
duced in  the  Odelsting  by  a  member  or  a  minister.  If  passed, 
a  bill  goes  to  the  Lagting,  which  may  concur  or  reject  it.  In 
case  df  a  rejection  by  the  Lagting  it  is  again  considered  and  if 
again  passed  with  or  without  amendments  it  is  once  more  sub- 
mitted to  the  Lagting.  If  then  rejected  it  is  considered  by  the 
whole  Storthing,  sitting  as  one  body,  a  two  third  vote  being 
required  to  pass  it.     When  passed  the  act  went  to  the  king,. 


.DENMARK,  SWEDEN  AND  NORWAY  469 

who  signed  if  he  approved  it,  and  suspended  if  he  disapproved. 
If  a  bill  had  been  passed  without  amendment  by  three  regular 
Storthings  elected  successively,  during  sessions  separated  by 
at  least  two  intervening  regular  sessions,  it  became  a  law 
without  the  king's  sanction.  Appropriation  bills  were  not 
subject  to  the  king's  veto. 

The  democratic  character  of  the  Storthing  was  well  tested, 
when  the  hereditary  nobility  was  abolished  by  an  act  pro- 
posed in  181 5  and  finally  passed  in  1824  under  the  provisions 
of  the  constitution,  without  the  king's  sanction  and  over  his 
opposition  and  repeated  objection.  The  people  of  Norway 
escaped  the  blight  of  the  feudal  system.  The  peasants  have 
always  been  free,  and  their  tenure  of  land  has  been  that  of 
absolute  owners.  The  lowest  court  in  Norway  is  that  of  mu- 
tual agreements,  held  once  a  month  in  every  parish  by  a  com- 
missioner elected  by  the  householders.  Next  is  the  sorens- 
krior  which  sits  quarterly  and  has  jurisdiction  of  both  civil 
and  criminal  causes.  The  entire  kingdom  is  divided  into  four 
provinces,  eighteen  amts,  sixty-)f our  sorenskriveries  and  forty- 
four  fogderies.  The  stifts-amt  court  consists  of  three  judges 
with  assessors,  who  are  stationary  in  the  chief  towns  in  each 
of  the  four  grand  divisions,  and  review  the  action  of  inferior 
courts.  All  cases  may  be  carried  by  appeal  to  the  Hoieste  Ret 
at  Christiania.  A  judge  is  liable  in  damages  for  a  wrong 
decision.  The  system  of  electing  members  of  the  Storthing  is 
peculiar,  in  that  the  voters  choose  electors  who  meet  in  each 
county  and  name  the  members.  A  low  property  qualification 
is  required  or  a  public  appointment  to  qualify  a  voter. 

Norway  has  a  good  school  system,  raging  from  generally 
attended  primary  schools,  middle  and  high  schools  to  the 
university  at  Christiania.  The  Norwegian  of  to-day,  as  his 
ancestor  the  viking,  still  sails  the  sea,  and  considering  the 
number  oif  people  in  the  country,  Norway  plays  a  very  promi- 
nent part  in  the  carrying  trade  and  foreign  commerce  of  the 
world.  Her  people  are  no  longer  the  dread  and  terror  of  the 
seas,  but  honest,  peaceful  toilers,  faithfully  doing  their  part 
of  the  useful  labors,  yet  preserving  their  old  love  of  liberty 
and  retaining  an  essentially  democratic  state. 


.,470  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

In  1905,  owing  to  the  refusal  of  the  King  to  accede  to 
the  demands  of  Norway  with  reference  to  the  foreign  consular 
service,  the  relations  of  the  two  countries  were  severed  peace- 
fully. King  Oscar  relinquished  the  crown  of  Norway  on 
October  27  and  on  November  18  Charles  of  Denmark  was 
elected  king  of  Norway  and  took  the  name  of  Hakon  VII. 

In  1907  parliamentary  suffrage  was  given  to  unmarried 
women  over  twenty-five  years  of  age  who  pay  taxes  on  in- 
comes of  300  kroner  in  the  country  or  400  in  town  and  to 
married  women  whose  husbands  pay  taxes  on  like  incomes. 


CHAPTER  XX 

Germany,  Austria,  Hungary  and  Poland 

The  characteristics  of  the  early  German  society  have  been 
briefly  mentioned  in  Chapter  II.  The  mass  of  the  people  were 
freemen,  who  bore  arms  and  held  as  slaves  prisoners  of  war 
and  those  condemned  to  slavery  for  crime.  Important  affairs 
were  decided  in  assemblies  of  the  tribe,  and  the  authority  of 
the  nobles  was  temporary  and  largely  dependent  on  the  will 
of  the  freemen.  L^nds  were  owned  in  common  and  peri- 
odically distributed.  Each  village  chose  its  own  chief,  and 
the  heads  of  the  hundreds  and  tribes  were  also  elected  by  the 
freemen.  The  chiefs  were  accustomed  to  gather  a  personal 
following  around  them,  which  became  the  nucleus  of  military 
power  and  the  starting  point  of  established  authority.  In  war 
the  whole  body  of  freemen  constituted  the  army  and  went  out 
to  battle.  When  large  numbers  combined  they  chose  their 
herzog.  The  Romans  came  in  contact  with  the  Cimbri  and 
Teutons  about  loo  B.C.  In  numerous  conflicts  with  various 
tribes  thereafter  they  invariably  found  them  strong  and  brave. 
In  A.D.  6  Arminius  formed  a  confederacy  of  such  power  that 
he  was  able  to  fall  upon  Varus  and  utterly  destroy  his  legions. 
The  Romans  succeeded  in  establishing  their  authority  over 
most  of  Austria,  Hungary  and  along  the  Rhine,  but  were 
never  able  to  extend  their  rule  over  interior  and  northern  Ger- 
many. With  increase  in  numbers  and  advancement  in  capacity 
for  organization  the  Germans  in  turn  drove  the  Romans  out 
and  invaded  the  Roman  provinces.  The  Marcomanni  iformed 
a  powerful  league,  which  the  Romans  under  Marcus  Aurelius 
fought  through  successive  campaigns.  In  the  fourth  century 
the  Goths  founded  a  great  kingdom,  extending  across  the 
continent  from  the  Baltic  to  the  Black  sea.  This  was  broken 
up  by  the  Huns,  who  poured  in  over  the  Russian  steppes  from 
Asia.     Under  pressure  from  this  invasion  the  Burgundians, 

471 


472  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Vandals  and  Suevi  moved  westward,  the  first  named  taking 
the  valley  of  the  Rhone,  the  Vandals  passing  on  through  Gaul 
and  Spain  into  Africa  and  the  Suevi  establishing  themselves 
in  Spain.  The  Goths  under  Alaric  invaded  Italy,  seized  Rome, 
and  spread  over  Gaul  and  Spain.  The  Lombards  also  pushed 
southward  and  succeeded  the  Goths  in  the  mastery  of  Italy. 
The  Avars  from  the  east  established  themselves  in  Hungary. 
Though  these  and  other  tribes  played  a  most  important  part 
in  the  dismemberment  of  the  Roman  empire  and  established 
their  authority  over  large  districts,  the  most  important  ad- 
vances toward  the  organization  of  a  great  German  state  were 
first  made  by  the  Franks,  who  dwelt  along  the  lower  Rhine. 
They  lived  in  close  contact  with  the  Romans  of  Gaul,  with 
whom  they  were  comparatively  friendly  and  ifrom  whom  they 
borrowed  notions  of  government.  By  the  middle  of  the  fifth 
century  the  Salian  Franks,  who  dwelt  about  the  mouth  of  the 
Rhine  and  along  the  shore  of  the  North  Sea,  had  an  heredi- 
tary king,  who  ruled  over  a  state  divided  into  gaue  governed 
by  grafen  appointed  by  the  king.  There  were  no  nobles  but 
the  officials  and  immediate  followers  of  the  king.  The  popular 
assemblies  of  freemen  were  however  still  the  source  of  auth- 
ority and  determined  all  matters  of  great  concern.  Under 
Clovis,  481  to  511,  the  kingdom  was  extended  both  east  and 
west. 

In  the  Germanic  portion  of  the  kingdom  authority  was  dele- 
gated to  favorites,  as  grafen  in  the  counties  and  herzogen  over 
larger  districts,  to  whom  were  given  large  tracts  of  land. 
While  the  kings  increased  the  measure  of  their  authority  in 
the  western  portion  of  their  dominions  and  gradually  ceased 
to  consult  with  the  freemen  of  the  nation,  in  the  east  the  as- 
semblies of  the  tribes  and  hundreds  were  still  held,  and  the 
authority  of  the  king  and  his  officers  was  kept  in  check. 
Through  the  ownership  of  land  and  the  retainers  by  whom 
they  were  surrounded,  the  grafen  and  herzogen  gradually  ex- 
tended their  power  over  the  freemen  and  shook  off  the  re- 
straints of  the  king,  till  under  the  impotent  Merovings  all  real 
authority  was  in  their  hands. 

Under  the  more  vigorous  sway  of  the  mayors  of  the  palace, 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  473 

Pepin  and  Charles  Martel,  the  central  power  was  restored  to 
some  extent,  and  under  Charlemagne  a  more  thorough  and 
efficient  system  was  established.  The  authority  of  the  Merov- 
ings  was  never  established  over  the  whole  of  Germany.  The 
Saxons  and  many  others  repeatedly  repudiated  it.  They  pre- 
served their  free  tribal  system  and  refused  to  accept  Christi- 
anity down  to  the  time  of  Charlemagne.  The  Saxons  refused 
to  confer  on  their  chiefs  authority  to  bind  them  by  treaties. 
No  central  authority  capable  of  speaking  for  all  the  tribes 
existed.  The  Bavarians  also  retained  much  of  the  same 
independence. 

Charlemagne  extended  his  general  system  over  Germany. 
Over  the  border  counties  he  placed  Margraves,  who  admin- 
istered justice  in  his  name,  collected  tribute  and  commanded 
the  border  forces.  Over  the  interior  counties  he  placed  grafen, 
who  ^decided  causes  in  accordance  with  local  customs  and  the 
general  code.  Four  times  each  year  each  district  was  visited 
by  his  messengers,  who  reported  to  him  and  carried  his  com- 
mands. He  also  founded  schools  in  connection  with  the 
churches  and  monasteries.  Under  his  rule,  however,  the  li- 
berties of  the  freemen  were  curtailed,  and  their  great  assem- 
blies no  longer  held.  The  nobles  only  were  consulted,  and 
their  advice  was  followed  when  it  suited  him.  The  matters 
which  had  before  been  decided  by  the  assemblies  of  freemen 
were  determined  by  his  appointees,  and  all  popular  gatherings 
were  discouraged.  The  burdens  of  his  many  wars  fell  heavily 
on  the  people,  who  were  often  compelled  to  serve  in  distant 
parts  to  their  financial  ruin  as  well  as  risk  of  life.  From  all 
on  whom  he  conferred  lands,  Charles  exacted  an  oath  of 
fealty,  he  also  required  all  his  prelates,  counts  and  many  great 
landowners,  whose  titles  were  not  received  as  benefices  from 
him,  to  take  a  like  oath. 

The  feudal  system  developed  as  an  accompaniment  of  the 
empire  of  the  Franks.  Its  essence  was  rulership  through  a 
theory  of  land  tenure,  by  which  the  relations  of  the  different 
orders  o>f  society  were  based  on  their  interest  in  or  relation 
to  the  soil.  The  ancient  Germans  had  not  reached  the  concep- 
tion of  absolute  title  to  land.     They  regulated  occupancy  in 


474  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

severalty  for  from  one  to  three  years  by  the  freemen  of  the 
tribe,  but  did  not  entertain  the  artificial  notion  of  a  title  which 
continued  through  all  time  as  an  absolute  property,  even  of 
the  tribes.  The  Romans  made  no  distinction  in  theory  between 
title  to  land  and  to  cattle  and  slaves  employed  in  tillage.  The 
feudal  system  came  with  the  seizure  of  the  lands  of  the  Ro- 
mans and  others  in  Gaul  by  the  invading  Franks.  Dominion 
over  the  land  and  the  conquered  people  were  acquired  con- 
temporaneously, and  in  granting  local  jurisdiction  and  mas- 
tery, whether  as  a  mere  landowner  or  as  an  agent  of  the 
sovereign  power,  Charlemagne  exacted  an  oath  of  fealty.  The 
high  regard  in  which  the  authority  of  the  church  had  come  to 
be  held  and  the  fearful  consequences,  spiritual  and  temporal, 
which  were  believed  to  result  from  a  violated  oath,  gave  to 
the  form  of  swearing  fealty  a  force  and  value  deemed  of 
first  importance.  The  object  of  the  kings  in  parcelling  out 
the  land  among  feudatories  was  to  secure  their  own  dominion 
by  the  military  service  which  their  vassals  were  bound  to 
furnish.  The  counts  and  Margraves  appointed  by  Charle- 
magne under  his  vigorous  rule  obeyed  his  commands  and  car- 
ried out  his  policy,  but  under  his  weak  successors  the  feudal 
system  developed  power  in  the  local  lord,  who  became  a  despot 
over  those  beneath  him,  a  jealous  and  contentious  neighbor  to 
his  equals  and  a  haughty  and  often  rebellious  vassal  of  the 
king.  On  his  own  estate  the  feudal  lord  administered  what 
had  to  pass  for  justice.  The  actual  tillers  oif  the  soil  were 
without  protection  as  against  him.  The  practice  of  building 
strong  castles,  within  which  the  barons  defied  all  authority  and 
from  which  they  issued  to  rob  the  passing  merchant  or  to 
wage  war  on  some  neighbor  nowhere  gained  more  ample  de- 
velopment than  along  the  Rhine,  Danube  and  throughout  Ger- 
many. Not  all  of  the  lands  of  Germany  were  held  by  feudal 
tenure.  The  village  system  prevailed  largely  in  the  south, 
and  peasant  communities  with  lands  in  common  have  survived 
in  various  parts  to  the  present  day.  It  would  be  a  tedious  and 
perhaps  profitless  task  to  trace  the  endless  wars  for  succession 
to  power  and  the  ever  changing  frontiers  of  the  German  em- 
perors, who  held  more  or  less  sway,  according  to  their  varying 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  475 

capacities  and  the  shifting  combinations  of  local  rulers  with 
which  they  were  forced  to  contend.  Charlemagne  was 
crowned  at  Rome  by  the  Pope  and  held  real  power  in  Italy. 
In  918  Henry,  Duke  of  Saxony,  was  chosen  Emperor  and, 
being  a  capable  and  vigorous  ruler,  extended  his  authority 
over  the  whole  German  population  and  in  a  great  battle  de- 
feated the  Magyars,  who  were  the  scourge  of  Germany  at 
that  time.  He  encouraged  the  building  o'f  towns  for  the 
traders,  which  were  made  places  of  defense,  and  at  that  early 
day  introduced  a  check  on  the  tendency  of  the  great  lords  to 
draw  all  the  freemen  to  their  support  as  vassals.  The  towns 
steadily  developed  as  centers  of  industry  and  trade,  and  their 
spirit  of  independence,  which  has  never  disappeared,  has  pro- 
foundly influenced  German  civilization  in  all  succeeding  ages. 
Probably  this  development  should  be  attributed  more  !o  the 
genius  of  the  people  than  to  the  policy  of  Henry.  At  Henry's 
request  the  nobles  after  his  death  chose  his  son  Otto  as 
his  successor.  He  not  only  preserved  but  extended  the  bounds 
of  the  empire.  He  added  Lombardy  to  his  dominions  and 
received  the  imperial  crown  from  the  hands  of  the  Pope. 
Henceforth  the  German  emperors  assumed  the  title  of  Roman 
emperors  and  claimed  to  rule  the  Holy  Roman  empire,  whether 
receiving  the  crown  (from  the  Pope  or  not  and  without  regard 
to  the  possession  of  real  power  in  Italy.  Otto  had  to  contend 
with  rebellious  subjects.  The  Roman  tii:le  and  efforts  to  rule 
Italy  proved  a  source  of  weakness  rather  than  strength  to  his 
successor*.  The  real  governing  power  soon  fell  into  the  hands 
of  local  potentates  holding  large  estates,  or  of  leaders  chosen 
by  the  people  in  contests  with  the  invading  Northmen,  Mag- 
yars and  Slavs,  against  whom  the  Emperors  failed  to  give 
protection.  We  read  of  dukes  of  Saxony,  Bavaria,  Swabia, 
Lorraine  and  Franconia,  whose  power  and  influence  grew  as 
feudal  lords.  Many  unprotected  owners  of  free  or  allodial 
lands,  being  at  the  mercy  of  more  powerful  neighbors,  chose 
to  surrender  their  holdings  to  a  powerful  chief  and  take  them 
back  as  fieif s  under  the  protection  of  the  feudal  lord.  The 
central  power  was  without  sufficient  vigor  to  restrain  the  great 
lords,  who  levied  war  on  one  another  at  will.     The  imperial 


476  EVOLUTION  OF  GOVERNMENTS  AND  LAWiS 

power  ceased  to  be  recognized  as  an  inheritance  after  the  ac- 
cession to  the  throne  of  Arnuld,  the  illegitimate  son  of  Carl- 
man:  thereafter  the  Emperors  were  elected.  In  911  Conrad 
of  Franconia  was  chosen  by  the  nobles  under  the  lead  of  Otto 
duke  of  Saxony.  From  that  time  down  to  the  final  separation 
of  Austria  and  Germany  in  recent  times  the  office  was  filled 
by  election,  but  the  number  of  electors  was  very  limited.  It 
was  the  choosing  of  an  Emperor  by  princes  who  exercised 
more  real  power  than  he.  The  local  rulers  under  the  titles  of 
graf,  herzog,  Margrave,  landgrave,  king,  elector  and  other 
designations  of  lay  rulers,  and  the  bishops,  archbishops,  ab- 
bots and  other  ecclesiastical  rulers,  were  each  subjected  to 
restraining  influences  of  varying  potency  according  to  times 
and  circumstances.  The  kings  and  grand  dukes,  who  acquired 
authority  over  considerable  districts,  were  dependent  for  their 
military  following  on  their  feudatories.  The  ancient  German 
idea  of  determining  questions  of  war  and  peace  in  assemblies 
of  freemen  was  never  wholly  obliterated,  although  at  times 
and  in  places  disused.  Local  assemblies  of  the  inferior  no- 
bility were  often  convoked  in  all  parts  of  Germany,  and  ex- 
ercised the  power  at  times  of  choosing  their  overlords  and 
of  deposing  distasteful  rulers.  Feudalism  effected  the  ex- 
clusion from  the  assemblies  of  the  great  mass  of  the  people, 
but  the  nobility,  of  whom  Germany  has  been  at  all  times  most 
prolific,  never  became  accustomed  to  submit  to  hereditary  ar- 
bitrary power. 

While  in  other  countries  it  is  possible  to  trace  a  govern- 
mental system  maintained  by  changing  dynasties  through  long 
periods  of  time,  in  Germany  we  trace  the  development  of  the 
civilization  of  a  race  of  people  maintaining  the  possession  of 
their  ancient  home  and  often  sending  out  conquering  hordes 
to  assume  mastery  of  other  lands,  but  never  themselves  at  any 
time  subjected  either  to  a  single  foreign  ruler  or  a  firmly 
established  government  of  their  own  with  general  power  over 
the  whole  German  people.  In  the  earliest  times  of  which  we 
have  any  account,  free  German  tribes  occupied  substantially  all 
of  modern  Germany,  the  Netherlands,  and  Austria.  The  Ro- 
mans succeeded  in  imposing  their  authority  on  the  southern 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  477 

and  a  little  of  the  western  part  of  this  territory,  but  it  was 
always  a  precarious  dominion,  and  the  crumbling  of  the 
•empire  first  began  where  it  came  in  contact  with  Germans. 
Except  for  a  brief  period  while  the  Romans  held  Dacia — in- 
cluding modern  Hungary. — the  empire  was  bounded  by  the 
Danube  and  the  Rhine,  beyond  which  the  Germanic  tribes 
maintained  their  freedom  and  defended  their  possessions 
against  all  comers.  They  have  been  attacked  from  every 
quarter,  from  the  west  in  the  early  days  by  the  Romans  and 
later  by  the  French  and  Spanish;  from  the  north  by  their 
kinsmen  the  Danes,  Swedes  and  Norwegians;  from  the  east 
by  Poles  and  Russians  in  the  north  and  the  later  swarms  from 
Asia  in  the  south — Huns,  Avars,  Magyars,  Tartars  and  Turks. 
In  the  southeast  Goths,  classed  as  of  German  stock,  and 
Avars,  Huns  and  Turks  have  established  successively  their 
authority  over  Hungary  and  part  of  Austria,  but  the  German 
stock  has  never  been  rooted  out,  and  only  in  Hungary,  where 
the  Magyars  became  the  dominant  race,  have  they  been  forced 
to  give  way  and  allow  an  alien  people  to  impose  enduring  do- 
minion over  them.  On  the  other  hand  the  German  Franks 
established  their  dominion  over  Gaul.  The  Goths,  Vandals 
and  Suevi  overran  Spain.  Wave  after  wave  of  German  con- 
quest swept  over  Italy  under  the  names  oif  Goths,  Lombards, 
Franks  and  Germans,  Even  Britain  was  colonized  and  mas- 
tered by  the  Angles  and  Saxons. 

The  preservation  of  the  German  race  and  the  maintenance 
of  its  possession  of  central  Europe  have  not  been  due  to  any 
strong  centralized  government,  nor  to  harmonious  or  con- 
certed action  of  the  different  states.  The  system  of  dividing 
inheritances  equally  among  males  has,  during  much  of  the 
time,  been  applied  to  those  estates  which  carried  also  heredi- 
tary rulership,  and  has  resulted  in  repeated  divisions  of  states 
among  heirs,  who  frequently  fought  with  each  other  for  the 
whole.  The  Franks  under  the  Merovings  suffered  for  cen- 
turies .from  the  contests  of  the  heirs  of  their  kings  for  the 
inheritance.  The  rights  af  rulers  great  and  small  were  the 
only  rights  considered,  and  the  people  were  constantly  called 
on  to  give  up  their  lives  in  the  struggles  of  vicious  and  cruel 


478  EVO/LUTION  OF  GOVERNMENTS  AND  LAW-S 

nobles  for  mastery  over  the  land.  Nothing  can  be  more  sad 
and  dreary  than  the  records  of  the  bloody  struggles  brought 
on  by  the  ambition,  malice,  cupidity  and  other  evil  passions  of 
those  invested  with  authority.  If  the  accounts  of  wars  great 
and  petty,  with  which  the  pages  of  German  history  are  so 
completely  filled,  were  in  fact  the  records  of  all  that  has  been 
done  by  the  princes  and  rulers,  a  sweeping  judgment,  utterly 
condemning  the  whole  and  denying  all  value  in  such  govern- 
ments, might  safely  be  pronounced,  but  war  has  always  been 
the  favorite  topic  of  historians,  and  the  doings  of  peace  are 
mostly  left  without  other  record  than  their  impresses  on  so- 
ciety and  the  face  o)f  the  earth.  Most  prominent  among  the 
characteristics  of  German  society,  the  good  effects  of  which 
can  be  discerned  in  all  periods  of  history,  are  the  relative 
purity  of  domestic  life,  the  respect  accorded  women  and  the 
equal  treatment  of  children.  No  cruel  theory  of  slavery  to  a 
father  or  husband  was  ever  adopted.  Purity  and  warmth  of 
attachment  of  husbands  and  wives  to  each  other  and  to  their 
children  without  distinction  have  in  all  ages  been  eminently 
characteristic  of  the  Germans.  Though  the  Rhine  was  for 
centuries  infested  by  its  robber  barons,  and  though  wrong  and 
robbery  abode  securely  in  the  castles  all  over  the  land,  in  no 
country  and  among  no  people  has  there  developed  a  more 
general  and  sturdy  honesty  than  among  the  Germans.  The 
performance  o)f  promises  and  the  payment  of  debts  imply  in- 
dustry, without  which  the  ability  is  wanting.  So  the  German 
people  are  noted  for  industry  and  thrift.  This  is  especially 
true  of  the  low  countries,  Holland  and  Belgium,  where  the 
manufacturing  of  fabrics  and  attendant  foreign  trade  early 
developed.  The  strength  of  the  German  people  has  been  and 
is  moral  strength.  They  have  not  until  very  recent  times  ex- 
hibited marked  capacity  for  great  combination  for  military 
supremacy,  but  have  on  countless  fields  exhibited  a  tenacity 
and  obstinate  courage  which  has  preserved  the  integrity  of 
their  homes,  where  other  people  would  have  been  crushed  or 
enslaved.  German  development  has  been  many  sided.  Henry 
III  1039-56  sought  to  reform  the  church,  which  had  fallen 
into  great  corruption,  and  in  1046  he  entered  Rome,  deposed 


I 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  479 

the  claimants  to  the  papal  throne  and  placed  on  it  a  man  of 
his  own  selection.  In  1075  Gregory  III  assumed  powers 
never  before  conceded  to  the  Pope  and  issued  a  decree  for- 
bidding the  clergy  to  marry  and  against  investiture  in  clerical 
offices  by  laymen.  In  Germany  half  the  land  is  said  to  have 
been  held  by  the  clergy,  to  whom  it  had  been  given  by  the 
sovereign,  and  the  principal  strength  of  the  emperor  was  de- 
rived from  the  support  of  the  churchmen  attached  to  his  in- 
terests by  the  feudal  tie.  Henry  IV  resisted  and  denied  the 
power  of  the  Pope.  In  return  he  was  excommunicated  and 
his  subjects  declared  absolved  from  their  allegiance  by  a  papal 
bull.  A  long  continued  struggle,  known  as  the  war  of  the  in- 
vestitures, followed,  which  did  not  end  till  the  concordat  of 
Worms,  by  which  as  a  compromise  it  was  agreed  that  the 
right  of  electing  the  prelate  should  be  vested  in  the  clergy  in 
the  presence  of  the  emperor  or  his  representative,  and  that 
he  should  invest  them  with  the  sceptre,  and  he  resigned  the 
right  of  investing  them  with  ring  and  staff.  With  Henry  V 
the  Franconian  House  ended,  and  Lothair  duke  of  Saxony 
was  chosen.  The  termination  of  the  Hohenstaulfen  dynasty 
found  the  imperial  authority  reduced  to  a  shadow.  Frederick 
Barbarossa  and  his  successors  expended  so  much  of  their  time 
in  foreign  wars,  the  crusade  and  in  Italy,  that  the  rulership  in 
Gerriiany  was  left  almost  wholly  to  the  local  princes.  The 
great  duchies  were  broken  up,  and  the  number  of  lords  holding 
directly  from  the  Emperor  had  been  greatly  increased.  The 
imperial  cities  had  developed  into  free  republics.  The  ruling 
class  in  the  country  consisted  of  a  large  number  of  prelates, 
dukes,  palsgraves,  margraves,  landgraves  and  counts,  inferior 
in  authority  to  the  Emperor  only  and  denying  obedience  to 
him.  Beneath  these  immediate  nobles  were  the  mediate  feudal 
barons  with  their  inferior  holdings.  These  looked  down  upon 
the  simple  freemen,  who  held  allodial  lands,  whom  they  fre- 
quently robbed  and  oppressed.  The  great  bulk  cif  the  popula- 
tion outside  the  cities  consisted  of  the  peasants  and  serfs, 
without  any  share  in  the  government  and  wholly  at  the  mercy 
of  the  nobility.  Besides  the  free  imperial  cities  there  were 
mediate  cities,  acknowledging  the  supremacy  of  the  lord  of 


48o  EVO/LUTION  OF  GOVERNMENTS  ANiD  LAWS 

the  district.  The  election  of  the  emperors,  though  in  fact 
dictated  by  a  few  great  princes,  in  theory  required  the  action 
of  the  whole  body  of  nobles  who  held  by  a  tenure  immediate 
from  the  Emperor.  On  the  occurrence  of  the  interregnum 
following  the  death  of  Conrad  IV  in  1254,  through  the  influ- 
ence of  Pope  Urban  IV  the  electoral  college  was  definitely  con- 
stituted of  the  archbishops  of  Mentz,  Cologne  and  Treves,  the 
houses  of  Mittelsbach  and  Saxony,  the  Margrave  of  Branden- 
burg and  the  King  of  Bohemia.  Prior  to  this  time  the  terri- 
tories governed  by  the  princes  were  not  divided  among  the 
heirs,  as  were  private  inheritances.  This  principle  was  now 
changed  and  divisions  were  made  of  the  principal  duchies. 

The  divisions  of  the  states  resulted  in  that  bewildering 
multitude  of  petty  sovereignties,  which  baffles  all  attempt  at 
clear  description.  Contemporaneous  with  this  splitting  of 
states  the  free  cities  evidenced  some  capacity  for  organiza- 
tion and  combination  for  the  common  good.  The  Rhenish 
Confederation  founded  by  Mainz  and  Worms  within  a  year 
included  seventy  cities.  Even  more  important  was  the  Hanse- 
atic  League,  originating  with  Lubeck  and  Hamburg,  which 
ultimately  took  in  over  eighty  cities  and  became  one  of  the 
great  commercial  powers  of  Europe.  In  1273  Rudolph  of 
Hapsburg,  a  petty  Swabian  noble,  was  elected  Emperor  and 
obtained  the  grant  of  the  fiefs  of  Austria,  Styria  and  Carinthia 
to  his  son  Albert.  In  this  manner  the  rule  of  the  Hapsburgs  in 
Austria  was  inaugurated  and  thereafter  many  Hapsburgs 
were  recipients  of  the  imperial  title. 

In  1356  Charles  IV  promulgated  what  is  termed  the 
Golden  Bull,  defining  the  rights  of  the  imperial  electors  in 
certain  particulars  as  to  which  there  had  been  uncertainty.  It 
had  not  been  settled  whether  all  the  princes  of  each  electoral 
house  were  entitled  to  vote,  nor  by  what  rule  a  selection  of  an 
elector  should  be  made  from  different  branches  of  a  family. 
This  was  definitely  settled  on  the  principle  of  primogeniture 
and  a  single  vote  to  each  house,  thereby  limiting  the  number 
of  electors  to  seven,  the  three  archbishops  before  mentioned, 
the  King  of  Bohemia,  the  Rhenish  palsgrave,  the  Duke  of 
Saxony   and   the   Margrave   df   Brandenburg.     The   electors 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  481 

were  recognized  as  invested  with  sovereign  powers  within  their 
respective  states,  and  their  subjects  were  allowed  to  appeal  to 
the  imperial  tribunals  only  in  case  of  a  refusal  to  administer 
justice.  When  the  imperial  authority  was  at  a  low  ebb,  vol- 
untary combinations  of  various  kinds  and  for  different  pur- 
poses sprang  up.  The  crusades  developed  the  order  of 
Teutonic  knights,  which  became  a  potent  force  for  a  time. 
During  the  twelfth  century  a  secret  organization  known  as 
the  Vehmgericht  grew  up,  and  continued  its  activity  down 
through  the  reign  of  Charles  IV  (1347  to  1378).  Its  oper- 
ations much  resembled  those  of  a  modern  frontier  vigilance 
committee  in  its  summary  administration  of  punishments  for 
offenses  against  the  order.  It  operated  as  a  check  on  the  arbi- 
trary power  of  the  princes,  though  often  used  to  gratiify  the 
malice  of  members  of  the  organization.  The  Hanseatic  league 
grew  in  importance  and  waged  successful  warfare  with  the 
Danish  king  for  the  protection  and  extension  of  its  commerce. 
The  petty  princes  were  allowed,  and  even  encouraged,  to  form 
leagues  among  themselves  for  the  maintenance  of  peace.  The 
actual  government  of  the  country  was  divided  between  the 
clergy,  whose  influence  was  powerful  at  all  times,  the  great 
princes,  who  were  held  in  check  by  the  feudal  lords  under  them, 
and  the  free  cities.  In  these  there  were  struggles  between  the 
leading  ifamilies  claiming  special  privileges  and  authority  and 
the  trades  guilds  and  democratic  elements  which  sought  self- 
protection.  The  greatest  vigor  was  found  where  the  brains 
of  many  were  actively  employed  in  public  affairs.  With  the 
development  of  industry  came  the  desire  for  knowledge  and 
the  study  of  the  works  of  the  Greeks  and  Romans.  Commerce 
can  only  flourish  in  an  atmosphere  of  order  and  regulated  by 
recognized  laws.  The  study  of  Roman  law  was  taken  up  by 
the  commercial  cities,  and  its  rules  were  followed  where  ap- 
plicable. The  Germany  of  today  is  noted  for  its  schools  and 
the  general  diffusion  and  profundity  of  its  learning.  Com- 
paritively  poor  in  the  quality  and  extent  of  their  lands,  the 
Germans  are  perhaps  the  richest  of  all  the  people  of  the  earth 
in  that  best  possession  of  all,  the  knowledge  acquired  through 
past  ages.     The  founding  of  its  universities,  which  have  ex- 


482  EVOLUTION  OF  GOVERNMENTS  AND  LAW)S 

ercised  such  a  potent  influence  on  modern  civilization,  began 
in  the  fourteenth  century.  Among  the  earhest  were  those  of 
Prague  1348,  Heidelberg  1386,  Wurzburg  1402,  Leipsic  1409, 
Rostock  1 41 9,  Greifwald  1456,  TiAbingen  1477. 

The  cities  of  Swabia  formed  a  league  for  mutual  protection, 
which  for  a  time  became  quite  potent,  and  entered  into  an 
alliance  with  the  Swiss  confederates,  but  the  princes  joined 
in  a  counter  alliance,  and  in  1388  in  a  battle  at  Doflingen  the 
cities  were  defeated  and  the  tyranny  of  the  petty  despots  be- 
came still  more  grinding.  In  the  next  century  a  similar  war, 
known  as  the  margraves  war,  was  waged  between  a  league 
of  many  cities,  headed  by  Nuremburg,  and  the  princes.  In 
this,  as  in  the  case  of  the  Swabian  league,  the  advantage  was 
on  the  side  df  the  princes.  About  this  time  the  mediate  nobles, 
prelates  and  cities  began  to  assert  their  rights  through  the 
medium  of  local  diets  into  which  they  gathered.  They  claimed 
the  right  of  determining  questions  of  taxation  and  the  pur- 
poses to  which  the  money  should  be  put,  and  also  to  insist  on 
a  regular  administration  of  justice.  These  diets,  composed 
of  the  lesser  nobility  holding  a  position  intermediate  between 
the  peasants  and  the  great  princes,  exercised  a  salutary  check 
on  the  arbitrary  powers  of  the  great  lords.  The  discovery  of 
gunpowder  caused  a  great  change  in  the  art  of  warfare  and 
was  followed  by  the  organization  of  bands  of  mercenary 
troops  who  fought  for  whomever  would  employ  them.  In 
1488  a  Swabian  confederation,  in  which  princes,  mediate  no- 
bles and  towns  joined  if  or  the  establishment  of  peace,  produced 
good  results  temporarily. 

With  the  advent  of  gunpowder  and  mercenaries  the  feudal 
tie  was  severed  and  feudalism  came  to  an  end.  At  the  farther 
extremity  of  the  empire  the  Magyars,  who  first  appeared  as 
nomads  from  Asia  devastating  the  country  and  spreading 
terror  among  the  Germanic  people,  gradually  adopted  settled 
habits  and  planted  their  habitations  in  a  district  which  had 
been  most  of  the  time  under  the  sovereignty  of  the  emperors. 

Nowhere  have  the  baneful  tendencies  of  power  long  exer- 
cised to  fall  into  the  hands  of  men  who  disregarded  the  pri- 
mary purpose  for  which  the  power  was  conferred  been  more 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  483 

clearly  exhibited  than  in  the  great  Roman  Church.  The 
humble  purity  and  self-sacrificing  spirit  of  Jesus  were  the 
foundation  on  which  the  vast  power  of  the  popes  was  built. 
Temporal  power  and  revenues  became  the  prime  concern  of 
those  who  ruled  the  church,  and  venality  and  immorality  so 
prevalent  that,  instead  of  leading  the  people  in  the  paths  of 
virtue,  the  churches  became  centers  of , pollution.  Germany, 
with  its  free  cities,  its  local  diets  of  nobles  and  its  ancient  tra- 
ditions of  virtue,  quickening  with  the  light  of  the  ancient 
world,  which  it  had  begun  to  study,  was  the  natural  field  for 
the  Reformation.  In  15 17  Martin  Luther  nailed  to  the  church 
door  in  Wittenberg  his  famous  thesis.  This  was  not  the  first 
attack  that  had  been  made  on  the  prevalent  abuses,  but  it 
precipitated  the  conflict  which  divided  the  Christian  world  into 
hostile  factions,  who  (fought,  murdered,  burned  and  tortured 
each  other  with  a  fiendish  cruelty  almost  inconceivable.  Huss 
suffered  martyrdom  one  hundred  years  before  for  like  senti- 
ments. The  immediate  occasion  of  Luther's  stand  was  the 
sale  of  indulgences  by  papal  authority.  This  was  a  remarkable 
illustration  of  the  prostitution  of  office  for  the  gratification  of 
the  officials.  In  order  to  raise  money  to  maintain  the  pope 
and  high  church  officials  in  the  splendor  so  incompatible  with 
the  teachings  of  the  Master,  the  Pope  sent  out  his  agents  to 
sell  licenses  to  violate  the  moral  law  as  taught  by  the  church, 
and  to  grant  immunity  from  the  consequences,  of  wrongdoing 
before  the  commission  of  the  act.  The  purpose  was  to  raise 
money  to  enable  the  clergy  to  gratify  their  own  vices.  It 
was  even  worse  in  principle  than  the  ordinar}^  robbery  olf  those 
whom  a  ruler  is  bound  to  protect  to  minister  to  his  vanity  or 
sensuality,  because  it  encouraged  those  whose  money  was  taken 
under  a  fradulent  claim  of  power  to  grant  absolution  in  ad- 
vance, to  violate  the  moral  law  and  do  wrong  to  themselves, 
and  to  others.  It  was  a  marked  exhibition  of  the  inherent 
tendency  for  those  who  possess  great  power  to  forget  the  du- 
ties they  have  assumed  and  the  services  they  owe  to  the  multi- 
tude and  pervert  their  offices  to  the  gratification  of  their  own 
lusts  and  selfishness.  The  church,  with  its  pure  and  lofty  mis- 
sion of  leading  men  in  the  paths  of  virtue  and  brotherly  love. 


484  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  distorted  into  a  hideous  combination  of  impostors,  who- 
encouraged  the  violation  of  the  moral  law  by  others  for  the 
price  of  sin  paid  to  themselves.  Against  the  power  of  the  vast 
church  organization  Luther  opposed  the  teachings  of  Christ 
and  the  moral  law.  The  ifree  cities,  the  local  diets,  the 
schools,  and  even  the  clergy,  perceived  the  strength  of  his  po- 
sition and  the  falsity, of  the  papal  claims.  The  revolt  against 
the  false  assumptions  of  ecclesiastical  power  spread  with 
surprising  rapidity  throughout  Germany.  The  democratic 
elements  sided  with  Luther,  and  the  nobility  divided.  The  im- 
perial force  naturally  sided  with  the  Pope.  As  in  most  revo- 
lutions, the  scope  of  the  issue  broadened  and  deepened.  What 
at  first  was  merely  a  protest  against  a  particular  abuse  became 
an  attack  on  the  assumption  and  exercise  of  a  function  not 
warranted  by  the  constitution  of  the  church.  Direct  account- 
ability of  the  individual  to  his  Maker,  instead  of  mediate  ac- 
countability through  the  church,  became  the  new  doctrine. 
Real  spiritual  penance  of  the  sinner,  instead  of  money  pay- 
ments or  mortifications  of  flesh  imposed  by  the  priesthood, 
was  taught  by  the  reformers.  It  was  a  partial  return  to  the 
democracy  of  the  early  church.  Whatever  forms  or  names 
may  be  assumed,  there  are  at  the  bottom  only  two  distinct  and 
antagonistic  principles  of  government,  the  despotic,  by  which 
power  is  exercised  by  the  ruler  for  his  own  purposes  and 
gratification,  the  democratic,  where  it  is  used  for  the  good  of 
the  multitude.  The  terms  are  here  used  to  express  purposes, 
not  forms  of  government.  The  former  is  essentially  vicious, 
because  it  wrongs  the  many  to  minister  to  the  vices  of  the 
few.  The  latter  is  essentially  moral,  because  at  its  foundation 
there  must  be  justice,  fellowship  and  mutual  help,  even  if  real 
brotherly  love  is  wanting.  Many  governments  have  seemed 
to  be  almost  wholly  despotic.  None  have  ever  been  purely 
democratic  in  the  above  sense  .'for  any  long  period.  The  des- 
potic tendency  is  always  present  in  every  established  system. 
Its  tendency  to  grow  has  been  nowhere  better  illustrated  than 
in  the  Roman  church. 

Naturally  the  despotic  elements  of  society  soon  rallied  to  the 
support  of  the  Pope,  while  the  more  democratic  sided  with 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  485 

Luther.  This  is  a  general  statement  of  the  situation,  subject 
to  many  quaHfications  resulting  from  personal  interests,  sur- 
roundings and  influences. 

Maximilian  of  Austria  was  on  the  imperial  throne  when 
Luther  took  his  stand,  but  died  in  1519,  and  was  succeeded  as 
emperor  by  his  grandson  Charles  V,  who  was  also  King  of 
Spain,  the  two  Sicilies,  and  Lord  of  Burgundy  and  the  Nether- 
lands. Charles  was  a  typical  despot.  In  the  Diet  of  Worms  in 
1 52 1  he  issued  an  edict  denouncing  Luther  and  placing  him 
under  the  ban  of  the  empire.  Before  his  election  the  electors 
had  exacted  from  Charles  a  promise  that  he  would  respect 
German  liberties  and  grant  reforms  which  had  been  demanded 
from  Maximilian.  The  members  of  the  diet  became  alarmed 
at  the  power  assumed  by  Charles  in  this  edict  and  took  steps 
to  impose  checks  on  it.  An  administrative  council  was  nomi- 
nated for  the  government  oif  Germany  while  Charles  should 
be  away.  The  number  of  troops  to  be  raised  by  each  state 
for  common  purposes  was  also  definitely  settled.  Charles  in- 
vested his  brother  Ferdinand  with  sole  authority  over  the 
Austrian  territories  and  left  Germany  to  enter  on  his  war 
with  Francis  I  of  France.  During  the  absence  of  Charles 
Ulrich  von  Hutten,  a  young  nobleman,  conceived  the  idea  of 
forming  a  united  reformed  German  state,  and  under  the  leader- 
ship of  Francis  von  Seckingen  a  large  force  was  gathered  and 
an  attack  made  on  the  elector  of  Treves,  but  the  princes  joined 
their  forces  and  Seckingen  was  defeated  and  slain.  The  idea 
of  religious  liberty  suggested  to  the  peasantry  a  revolt  against 
the  grievous  oppression  under  which  they  suffered,  and  in 
1524  they  sought  their  rights  with  the  aid  of  a  few  of  the 
nobility.  The  war  spread  over  much  of  southern  and  central 
Germany,  and  at  first  the  peasants  met  with  some  success,  but 
in  the  following  year  they  were  completely  subdued  and  their 
condition  rendered  even  worse  than  before.  By  these  wars 
the  power  of  the  princes  was  augmented  at  the  expense  of  the 
lesser  nobility.  Nevertheless  the  Reformation  made  rapid  pro- 
gress and  gained  recruits  from  the  various  orders  of  society. 
Diets  were  held  for  the  purpose  of  settling  the  controversy,  in 
which  Charles  persistently  sought  to  restore  the  authority  of 


486  EVO-LUTION  OF  GOVERNMENTS  AND  L.\WS 

the  Pope,  but  met  with  stubborn  resistance  from  the  Protes- 
tants. Arbitrary  power  is  never  tolerant  of  criticism  of  its 
vices.  It  chngs  to  them  with  more  tenacity  and  desperation 
than  to  deserved  authority.  The  sale  of  indulgences,  the 
simony,  venality  and  sensuality  olf  the  clergy  could  not  be  de- 
fended by  reason,  and  all  discussion  of  the  truth  tended  to 
undermine  clerical  power.  Stern  repression  was  therefore 
resorted  to.  Councils  were  held  at  Spires  in  1526  and  1529, 
at  the  first  of  which  the  administrative  council,  which  leaned 
toward  the  Reformation,  granted  religious  freedom  to  each 
state,  but  at  the  one  in  1829  changes  in  religion  were  forbid- 
den. In  the  following  year  a  diet  was  held  at  xA.ugsburg,  at 
which  the  Lutherans  submitted  a  summary  of  their  doctrines  in 
what  was  styled  the  Augsburg  Confession.  They  declined  to 
attend  mass  and  held  services  of  their  own  in  defiance  of  the 
will  of  Charles.  In  1532  Charles  granted  the  peace  of  Nurem- 
burg,  by  which  temporary  toleration  of  the  Augsburg  Con- 
fession was  allowed.  The  Lutheran  princes  and  cities  formed 
a  league  which  took  in  most  of  the  northern  cities  and  princes 
and  many  of  the  cities  of  southern  Germany.  After  the 
peace  of  Crespy,  concluded  with  France  in  1544,  Charles 
turned  his  arms  against  the  Protestant  league  and  defeated 
them.  He  thereupon  attempted  to  compel  submission  in  re- 
ligious matters.  He  assumed  arbitrary  powers  which  no  Ger- 
man Emperor  since  the  early  days  had  been  able  to  wield. 
His  tyranny  was  distasteful  even  to  the  Catholics,  and  Maurice 
of  Saxony,  who  had  sided  with  Charles  in  the  first  contests, 
now  became  the  leader  of  the  forces  against  him.  Joining 
forces  with  Henry  II  of  France,  he  compelled  Charles  to  flee 
from  Germany  and  sign  the  Peace  of  Passau,  agreeing  to 
summon  a  new  diet,  which,  having  met,  again  provided  for 
religious  toleration  olf  such  sort  as  each  state  might  see  fit  to 
accord.  This  still  left  abundant  room  for  local  discord.  The 
crime  of  heresy  depended  for  its  existence  on  the  ascendency 
of  Catholic  or  Protestant  and  concord  with  or  dissent  from 
the  faith  of  the  ruler.  The  atrocities  perpetrated  in  the  low- 
lands by  the  duke  of  Alva,  and  by  Frederick  II  in  Bohemia, 
were  characteristic  of  a  war  carried  on  by  a  temporal  despot 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  487 

to  maintain  the  false  and  pernicious  rule  of  a  malignant  clergy. 
Nor  were  the  atrocities  all  on  one  side.  Where  they  were  in 
power,  the  Protestants  were  often  as  intolerant  and  bloody  as 
the  Catholics.  The  pure  religion  of  Jesus  was  not  in  issue 
on  either  side,  but  tyranny  and  malice  brazenly  claimed  re- 
ligious sanction  for  their  fiendish  atrocities. 

The  Thirty  Years'  war  devastated  Germany  and  exhibited 
the  evil  that  men  may  do,  when  to  war's  ordinary  barbarities 
are  added  the  blind  fury  of  religious  fanaticism.  Though  Ger- 
many was  the  principal  field  of  the  struggle,  Spain,  France, 
England  and  Sweden  were  at  times  involved,  and,  when  it 
ended,  France  took  territory  on  the  west  and  Sweden  from 
the  north,  thereby  materially  diminishing  the  German  terri- 
tory. The  long  struggle  left  Catholics  in  the  ascendant  in  the 
south  and  Protestants  in  the  north,  and  the  peace  finally  con- 
cluded at  Westphalia  in  1648  recognized  Catholicism,  Luther- 
anism  and  Galvanism.  The  imperial  jKDwer  had  been  com- 
pletely shaken  off  by  the  Protestant  citizens  and  princes,  and 
after  the  peace  substantially  all  authority  passed  to  the  diet, 
which  alone  had  power  to  make  laws,  declare  war  and  con- 
clude treaties  in  the  name  of  Germany.  Its  power  over  the 
states  was  however  shadowy,  for  they  were  conceded  the 
right  to  make  alliances  among  themselves,  and  even  with 
foreign  ix)wers  if  not  injurious  to  the  empire.  After  1654 
the  diet  became  a  permanent  body  and  was  made  up  of  rep- 
resentatives of  the  princes  and  cities,  but  it  exercised  little 
authority.  The  real  governing  power  lay  in  the  local  rulers 
and  the  governing  bodies  of  the  cities.  As  a  result  of  the  war 
the  population  was  reduced  from  about  20,000,000  to  6,000,- 
000  or  7,000,000,  and  the  destruction  of  property  was  in  a 
still  greater  proportion.  The  once  flourishing  and  powerful 
Hanseatic  League  was  ruined  and  broken  up  in  1635,  during 
the  progress  of  the  war.  Among  the  worst  effects  of  the  long 
struggle  was  the  growth  of  the  spirit  of  despotism  among  the 
ruling  class,  engendered  by  so  long  a  strain  of  war,  and  the 
feeling  of  helplessness,  dependency  and  servility  among  the 
multitude.  Even  in  the  cities  democratic  systems  were  con- 
verted into  powerful  oligarchies  or  swept  away  by  princely 


488  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

dictation.  From  the  close  of  the  Thirty  Year's  war  to  the 
French  Revolution  despotic  theories  of  government  prevailed, 
and  the  spirit  of  militarism  grew.  The  Austrian  Hapsburgs 
continued  to  hold  the  imperial  title  most  of  the  time,  but  under 
the  lead  of  vigorous  rulers  Prussia  developed  a  rival  German 
power.  From  the  time  of  Urban  IV,  when  the  constitution 
of  the  electoral  college  was  first  settled,  the  Margrave  oif 
Brandenberg  had  been  one  of  the  imperial  electors,  and  in 
1438  the  elector  Frederick  became  a  candidate  for  the  im- 
perial throne.  His  successor  Frederick  II,  1440,  1470,  vigor- 
ously asserted  authority  over  the  cities  and  built  a  castle  in 
Berlin. 

In  1230  the  priestly  military  order  of  Teutonic  knights, 
which  had  been  formed  during  the.  crusades,  entered  Prussia, 
whose  people  had  not  yet  been  converted  to  Christianity.  In 
the  course  of  a  half  century  they  subdued  the  country  and 
received  a  grsftit  of  dominion  over  it  from  the  emperor.  Un- 
der their  rule,  the  country,  which  was  at  their  advent  but 
sparsely  peopled,  was  settled  with  many  German  colonists, 
and  cities  and  towns  were  soon  built.  In  the  course  of  a 
century  the  power  of  the  order  declined,  and  in  1467  West 
Prussia  became  a  fundal  dependency  of  Poland.  In  151 1  the 
Teutonic  Order  chose  Albert,  of  the  Franconian  branch  of 
the  Hohenzollerns,  as  grand  master  oif  their  order.  He  em- 
braced the  Protestant  cause  and  converted  the  lands  of  the 
order  into  a  secular  hereditary  duchy  in  1525,  continuing  as  a 
vassal  of  Poland.  In  161 1  this  duchy  fell  by  inheritance  to 
the  elector  of  Brandenburg,  and  the  two  districts  were  joined 
as  one  country  under  the  Hohenzollerns.  Thereafter  in  1657 
under  Frederick  William,  called  the  great  elector,  it  was  de- 
clared independent  of  Poland.  In  1701  the  elector  Frederick 
III,  with  the  assent  of  the  Emperor  purchased  by  aid  in  his 
wars,  assumed  the  title  of  king  and  took  the  crown  at  Konigs- 
berg  under  the  style  of  King  Frederick  I  of  Prussia.  Under 
his  rule  Prussia  made  little  progress  and  still  ranked  along 
with  Bavaria,  Saxony  and  Hanover  as  dependencies  of  the 
empire.  His  son  and  successor  Frederick  William  reformed 
the  finances  and  remodelled  the  army,  which  he  brought  to  a 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  489 

high  state  of  discipline  and  efficiency,  so  that  Prussia  took 
fourth  rank  as  a  miHtary  power,  though  only  twelfth  in  popu- 
lation. He  was  a  despot,  but  a  hardworking,  thoughtful  and 
economical  one,  who  labored  to  add  strength  to  his  state. 
With  the  aid  of  the  Saxons  and  Danes  he  defeated  the  Swedes 
and  drove  them  out  of  Pomerania.  He  collected  taxes  in 
money  for  the  maintenance  of  his  army  and  abandoned  entirely 
the  feudal  military  system.  Everything  was  bent  to  strengthen 
the  military  establishment,  which  absorbed  five-sevenths  of 
the  total  revenues.  Rigid  discipline  was  imposed,  not  only  on 
the  army  but  on  all  employed  in  the  civil  service,  whose  duties 
were  strictly  defined  and  derelections  severely  punished.  The 
long  and  vigorous  reign  of  Frederick  11,  called  the  great, 
1740  to  1786,  witnessed  the  further  development  of  the  mili- 
tary despotism  and  increase  of  the  territory  of  the  kingdom 
at  the  expense  of  Austria  and  Poland.  In  his  contests  with 
Austria,  France  and  Russia,  Frederick  gained  -g-reat  victories, 
but  at  fearful  cost  in  human  life  and  misery.  The  seven 
years'  war  witnessed  the  destruction  of  numerous  towns  and 
villages  and  a  decrease  of  half  a  million  in  the  population  of 
the  kingdom,  but  gave  to  the  king  the  title  of  Great.  Freder- 
ick nevertheless  la:bored  earnestly  to  advance  the  interests 
and  prosperity  of  the  country  in  accordance  with  his  despotic 
ideas,  and  some  of  his  innovations  were  real  reforms.  He 
completely  separated  the  judicial  from  the  administrative  de- 
partments of  government,  abolished  torture  in  trials  and  capi- 
tal punishment  for  inferior  offenses,  confining  executions  al- 
most entirely  to  cases  of  murder.  He  reduced  the  expenses 
Off  litigation  and  required  that  every  cause  be  disposed  of 
within  a  year.  He  undertook  a  codification  of  the  law,  which 
however  he  was  not  able  to  complete.  He  was  a  vigilant 
master  over  all  the  public  servants,  whom  he  closely  watched 
and  held  to  strict  account.  Himself  an  untiring  worker,  he 
exacted  strict  attendance  to  duty  from  his  subordinates.  In 
matters  of  religion  he  granted  full  liberty  to  each  to  go  to 
heaven  by  any  route  he  chose  to  travel  and  allowed  full  free- 
dom of  discussion.  The  stratification  of  society  he  left  un- 
changed, but  allowed  no  authority  to  the  diets  conflicting  with 


490  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

his  will.  His  successor  ruled  according  to  the  same  princi- 
ples, but  without  the  vigor  or  ability  of  Frederick. 

Austria  started  as  a  Margravate  of  Charlemagne  and  grew 
in  prominence  and  territorial  extent  at  times.  In  1453  it  was 
raised  to  the  rank  of  an  archduchy.  The  frequent  choice  of 
emperors  ifrom  the  ruling  house  of  Austria  gave  it  a  marked 
prominence  among  the  German  states,  and  the  history  of  the 
rulers  of  Austria  is  largely  identical  with  that  of  imperial 
Germany.  The  Thirty  Years'  war  and  the  growth  of  Protes- 
tantism in  the  north  weakened  the  influence  of  Austria  in 
Northern  Germany,  and  was  the  entering  wedge  which  ulti- 
mately resulted  in  the  destruction  of  the  empire.  As  a  result 
of  its  struggles  and  negotiations,  by  171 3  Austria  had  190,000 
square  miles  of  territory  and  29,000,000  people.  The  reign 
of  Maria  Theresa,  who  ascended  the  throne  in  1740  and  ruled 
till  1780,  witnessed  great  wars,  including  the  Seven  Years' 
war  with  Frederick  of  Prussia,  but  was  a  i^eriod  of  great 
prominence  for  Austria,  which  added  still  further  to  its  terri- 
tory. Her  husband  Francis  I  was  chosen  Emperor  (1745  to 
1765),  but  his  imperial  powers  were  completely  overshadowed 
by  those  of  his  wife  as  ruler  olf  Austria.  She  was  not  only  a 
vigorous  head  of  the  military  power,  but  a  reformer  in  civil 
affairs,  though  by  despotic  methods.  Her  son  and  successor 
Joseph  n  attempted  sweeping  reforms,  which  however  he 
was  unable  to  carry  out. 

At  the  breaking  out  of  the  French  revolution  nearly  every 
vestige  of  ancient  popular  government  had  been  obliterated. 
Arbitrary  power  was  everywhere  exercised  under  a  claim  of 
divine  right  to  rule,  and  backed  by  military  force.  In  the 
south  there  was  no  constitutional  check  on  the  absolute  power 
of  the  ruler  of  Austria,  save  in  Hungary,  and  this  was  little 
regarded.  In  the  north  the  Prussian  despotism  was  vigor- 
ously maintained,  and  in  the  minor  principalities  equally  arbi- 
trary and  despotic  maxims  were  followed.  Yet  the  traditions 
of  ancient  liberties  still  survived,  and  the  people  were  a 
strong  and  vigorous  race,  fitted  for  rapid  advancement  under 
favorable  conditions.  As  a  result  o.'f  the  peculiar  political 
organization  of  Germany  the  superior  nobility,  who  were  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  491 

real  governing  power,  jealously  guarded  their  social  rank, 
and  by  their  code  of  Fiirsfenrecht  valid  marriages  of  those 
ranking  as  the  immediate  vassals  of  the  emperor  could  only 
be  made  with  those  of  equal  rank.  Offspring  by  marriage 
with  the  inferior  or  mediate  nobility  were  treated  as  illegiti- 
mate. The  hereditary  political  power  of  the  margrave,  duke 
or  other  titled  prince,  passed  by  the  rule  of  primogeniture,  as 
did  the  lands  held  in  feudal  tenure  from  the  crown,  but  allo- 
dial lands  and  personal  estates  were  equally  divided  among 
the  sons,  or  in  some  instances  the  daughters  also  took  a  share, 
sometimes  less  than  that  of  a  son.  All  the  children  however 
ranked  as  nobles  of  inferior  degree.  The  inferior  nobility 
were  no  less  tenacious  oif  their  social  rank  than  the  princes. 
The  rule  of  inheritance  of  rank  by  all  the  children  has  re- 
sulted in  great  multiplication  of  the  lesser  nobility,  many  of 
whom  are  exceedingly  jMDor.  Prior  to  the  Thirty  Years'  war 
the  petty  lords  wielded  considerable  power  and  political  in- 
fluence through  the  diets,  but  the  long  struggle  left  them 
shorn  of  their  importance,  except  as  they  were  the  holders  of 
estates.  As  landholders  they  had  valuable  privileges.  They 
were  judges  of  all  matters  of  dispute  between  tenants  of  their 
estates,  and  exempt  from  ta:?tes  and  from  having  soldiers 
quartered  on  them.  They  had  the  right  to  settle  tradesmen 
on  their  estates  in  opposition  to  the  town  guilds.  They  en- 
joyed exemption  from  that  severity  of  punishment  which  was 
visited  on  offending  peasants. 

The  system  of  land  tenures,  prevailing  at  the  time  oif  the 
French  Revolution  and  still  unchanged  in  many  parts,  ex- 
hibits many  peculiarities,  resulting  from  ancient  ideas  and 
conditions.  The  village  system  with  many  modifications  was 
common  throughout  Germany,  especially  in  the  south  and 
among  the  Slavonic  people.  Whether  the  land  was  allodial  or 
held  by  feudal  tenure  under  a  lord,  in  many  places  all  land, 
except  that  immediately  about  the  dwellings,  was  held  in 
common  and  subject  to  changing  occupancy  by  periods  of 
varying  length.  Pasture  and  woodlands  were  usually  used 
in  common,  the  tilled  land  only  being  divided.  In  other  places 
the  cultivated  land  was  divided   and  held  in   severalty,   but 


492  EVOiLUTION  OF  GOA^ERNMENTS  AND  LAWS 

without  power  of  alienation  by  the  owner  without  the  consent 
of  all  who  might  be  entitled  to  inherit  it,  and  the  balance  was 
used  in  common.  Various  regulations  were  made  with  refer- 
ence to  the  construction  of  dwellings  and  the  division  of  the 
land.  In  some  places  the  village  is  built  along  a  single  street, 
and  the  land  cut  in  long  strips  extending  back  from  the 
dwellings.  In  others  the  dwellings  are  in  a  cluster  and  the 
land  divided  so  as  to  assign  to  each  his  three  fields,  to  be 
tilled  according  to  the  prevailing  three  field  system  of  rota- 
tion of  crops.  Where  the  system  of  permanent  ownership  of 
these  fields  obtains,  whenever  cultivation  is  extended  over 
reclaimed  forests  or  other  common  lands,  a  division  oif  these 
is  made,  and  each  receives  his  allotment.  As  a  result  of  in- 
heritance still  further  divisions  are  made,  and  thus  it  has 
come  to  be  the  case  that  much  of  the  land  is  divided  into  ex- 
ceedingly small  patches,  and  one  owner  may  have  a  great 
number  of  them  scattered  a;bout.  In  some  cases,  for  mutual 
protection,  the  peasants  gathered  into  larger  villages,  and  the 
lands  they  held  were  scattered  over  a  considerable  district. 
In  some  places  all  the  lands  have  been  divided,  while  in  others 
there  are  still  common  pasture,  forest  and  meadow  lands. 
In  the  northern  and  western  parts  the  village  system  is  not 
general;  the  farms  are  in  compact  bodies,  with  dwellings 
scattered  over  the  country.  This  has  been  promoted  by  the 
entailment  of  estates,  by  a  custom  of  leaving  the  land  to  a 
single  heir  and  by  restriction  of  the  numbers  of  children. 

The  minute  subdivision  of  lands  has  been  regarded  as  an 
evil,  and  in  some  of  the  states  methods  have  been  adopted  by 
the  government  of  reapportioning  the  districts  so  as  to  throw 
all  the  lands  ai  an  owner  into  a  compact  body.  This  has 
been  found  a  somewhat  difficult  task  to  perform  satisfactorily. 
While  some  of  these  peasant  holdings  were  free  or  allodial, 
as  a  rule  they  were  under  a  lord,  who  not  only  took  a  share, 
of  the  produce,  but  was  also  accustomed  to  compel  the  tenant 
to  labor  for  him  on  his  separate  lands  a  portion  of  the  time. 
Such  service  was  called  frohn,  and,  as  the  lord  was  himself 
the  judge  of  all  matters  of  right  on  his  estate,  was  often  very 
oppressively  exacted.     The  condition  of  the  peasantry  from 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  493 

the  establishment  df  the  feudal  system  till  the  revolution  was 
essentially  that  of  serfs,  and  those  claiming  allodial  tenures 
were  loaded  with  taxes  or  pillaged  in  one  form  or  another,  so 
that  their  condition  was  hardly  distinguishable  from  that  of 
the  feudatories.  Poverty  and  oppression  in  peaceful  times, 
ruin  and  death  in  war,  have  been  the  lot  of  the  German  peas- 
ants for  many  centuries.  In  the  cities  the  ancient  democratic 
systems  had  been  crushed,  and  all  political  power  was  in  the 
hands  of  the  princes  and  nobility. 

In  the  development  of  its  system  of  laws  the  situation  of 
Germany  was  somewhat  peculiar.  After  Charlemagne  no 
Emperor  was  sufficiently  powerful,  and  at  the  same  time  sulf- 
ficiently  interested  in  general  rules  of  law,  to  undertake  much 
legislation  for  the  government  of  the  empire.  The  feudal 
system  furnished  the  basis  of  land  tenures,  and  the  peasantry 
had  to  submit  to  the  rulership  of  their  lords,  whose  will,  what- 
ever it  might  be,  was  law.  On  church  lands  the  rule  of  the 
clergy  and  heads  of  monastic  institutions  was  probably  rather 
more  mild  on  the  whole  than  that  of  the  barons,  but  was  gen- 
erally oppressive.  For  the  government  of  trade  the  Roman 
law  was  studied  and  followed  with  more  or  less  modifications. 
During  the  times  when  the  free  cities  maintained  their  leagues, 
they  established  their  own  rules  and  customs,  but  with  the 
founding  df  schools  came  the  study  of  the  learning  of  the 
Greeks  and  Romans,  and  the  principles  of  the  Roman  law 
were  taken  as  guides  in  the  administration  of  justice. 

The  history  and  government  of  Poland  is  closely  allied  and 
interwoven  with  that  of  Germany,  though  the  stratification  of 
its  society  is  somewhat  different.  In  the  earliest  times  of 
which  we  have  any  accounts  there  were  three  orders,  i.  The 
nobles,  who  were  the  rulers;  2.  Peasants,  personally  free  but 
iDound  to  do  fixed  services  for  their  lords ;  3.  Serfs,  who  were 
the  property  of  their  masters  and  under  their  absolute  power. 
In  965  King  Mieczyslaw,  in  order  to  gain  the  hand  of  the 
daughter  of  the  Bohemian  king,  consented  to  become  a  Chris- 
tian and  be  baptized.  He  thereupon  proceeded  to  convert  the 
nation  by  commanding  all  Poles  to  be  baptized.  The  Poles 
came  in  frequent  contact  with  the  Russians  in  the  east  and 


494  EVOLUTION  OF  GOVERNMENTS  AND  LAW'S 

the  Germans  on  the  west.  In  these  struggles  they  were  on 
the  whole  fairly  successiful  in  maintaining  their  position,  and 
by  the  time  of  Casimir  III  Poland  held  high  rank  among  the 
states.  In  1364  the  foundation  of  the  university  of  Cracow 
was  laid  by  Casimir,  whose  plans  with  reference  to  it  were 
afterward  carried  forward  by  Queen  Jadwiga.  In  1347  by 
the  statute  of  Wislica  many  matters  were  regulated.  The 
duty  of  a  palatine  was  to  lead  the  troops  of  his  palatinate  ni 
war  and  to  preside  over  the  diet  of  the  nobles  of  his  province. 
Under  the  palatines  were  castellans  who  were  their  lieutenants 
in  war.  Palatines  and  castellans  were  senators  and  judicial 
officers  who  held  court  in  their  provinces.  Niintii,  deputies, 
were  chosen  from  the  various  districts  of  each  palatinate. 
The  senators,  o)f  whom  sixteen  were  ecclesiastics,  all  sat  in 
one  house.  By  this  statute  the  power  of  life  and  death,  there- 
tofore exercised  by  the  nobility  over  the  lives  of  their  serfs, 
was  taken  away,  and  a  peasant  ill  treated  by  his  lord  was 
allowed  to  remove  to  the  estate  of  another.  The  inhabitants 
of  the  towns,  of  whom  many  were  Germans,  were  governed 
by  the  law  of  Magdeburg,  to  administer  which  a  Teutonic 
tribunal  was  established  at  Cracow,  consisting  of  a  judg^ 
versed  in  foreign  law  and  seven  citizens  nominated  by  the 
starosta.  It  is  said  that  before  this  there  were  no  written 
laws  in  Poland.  The  national  diet  was  made  up  of  the  nobles 
and  upper  clerg}^  and  some  of  the  prominent  citizens.  It 
soon  not  only  determined  questions  oif  peace  and  war  but  also 
elected  the  kings.  The  diet  chose  as  Casimir's  successor  Louis, 
King  of  Hungary.  In  1369  by  the  marriage  of  Queen  Jad- 
wiga with  Jagiello  Prince  of  Lithuania  the  two  countries  were 
united.  He  was  not  a  Christian,  but  became  one  and  pro- 
ceeded to  convert  his  Lithuanian  pagan  subjects  by  command- 
ing them  to  be  baptized.  In  a  diet  held  in  1496  it  was  or- 
dained that  thereafter  no  peasant  or  burgher  should  hold  office 
in  the  church,  and  the  peasantry  were  obliged  to  submit  their 
causes  to  courts  presided  over  by  their  noble  masters.  It  was 
also  decreed  that  no  king  should  declare  war  without  the 
consent  of  the  diet.  Shortly  after  this  burghers  and  peasants 
were  prohibited  from  owning  lands.    In  the  diets  the  Slavonic 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  495 

principle  of  unanimity  of  decision  was  adopted.  This  proved 
not  merely  inconvenient  but  disastrous,  and  rendered  it  pos- 
sible to  prevent  action  on  any  matter  of  importance  by  merely 
corrupting  one  member.  When  majorities  were  effectively 
checked  by  minorities,  fights  and  bloodshed  often  followed. 
Nowhere  was  the  rule  of  an  oligarchy  more  complete  and 
tyrannical,  and  nowhere  else  was  there  ever  more  turbulence 
and  discord  among  the  governing  body.  In  1529  Sigismund 
published  his  code  of  laws  in  the  White  Russian  language. 
Though  by  the  pacta  conventa,  exacted  from  Henry  oif  Valois 
when  he  was  elected  to  the  Polish  throne,  the  power  of  the 
King  had  been  closely  limited,  on  the  choice  of  Stephen  Batory 
as  his  successor,  after  Henry's  return  to  France  to  become  its 
king,  still  further  restrictions  were  imposed  by  the  nobles. 
Sixteen  senators  were  chosen  at  each  diet  to  attend  and 
counsel  with  the  king,  and  no  decree  could  be  issued  by  him 
without  their  consent.  The  right  of  final  appeal  to  the  king 
was  taken  away,  and  his  jurisdiction  was  limited  to  a  small 
district  about  his  palace.  The  local  diets  of  the  palatinates 
elected  their  judges,  who  constituted  courts  of  final  jurisdic- 
tion over  causes  between  the  nobles.  In  161 7  Wladislaw,  son 
of  King  Sigismund  of  Poland,  was  chosen  Czar  of  Russia, 
but  he  was  soon  driven  out.  In  1652  a  single  member  of  the 
diet  by  his  veto  prevented  a  resolution  in  which  all  the  rest 
concurred.  Afterward  action  was  similarly  defeated  on  many 
occasions.  Under  John  Sobieski  the  Poles  took  a  leading  part 
in  the  great  battles  with  the  Turks  which  resulted  in  their 
crushing  deifeat  before  Vienna  in  1683.  From  this  time  the 
power  of  Poland  rapidly  declined.  In  1772  the  first  partition 
was  made,  in  which  Prussia,  Austria  and  Russia  each  took 
portions  of  its  territory,  and  in  1846  the  last  vestiges  of  its 
independent  national  existence  were  obliterated  by  its  great 
neighbors.  The  constitution  and  characteristics  of  Polish  so- 
ciety were  peculiar.  It  had  law  but  no  justice,  a  king  with 
little  real  power  and  a  sorely  oppressed  peasantry.  The  no- 
bility, who  alone  possessed  real  power,  surrounded  themselves 
with  their  retainers  and  lived  in  luxury  and  vice  from  the 
labors  of  their  serfs.     In  their  associations  with  each  other 


496  EVOLUTION  OF  GOVERNMENTS  AMD  LAWS 

they  were  turbulent,  quarrelsome  and  jealous,  yet  in  contests 
with  kings  and  peasants  they  zealously  maintained  the  unjust 
privileges  of  their  order.  Poland  presented  compactly  the 
undivided  rule  of  the  nobility,  which  throughout  Germany 
was  interspersed  with  democratic  cities  and  peasant  communi- 
ties maintaining  more  or  less  independence  in  the  manage- 
ment of  their  local  affairs.  Its  loss  of  national  life  was 
mainly  due  to  the  lack  of  moral  basis  for  the  authority  ex- 
ercised by  the  nobility  and  the  want  o»f  a  recognized  theory 
binding  the  people  together  for  their  mutual  protection. 
Gross  oppression  of  the  multitude  destroyed  the  military 
efficiency  of  the  common  people,  and  the  rivalries,  ambitions 
and  jealousies  of  the  nobility  unfitted  them  for  cooperation 
against  foreign  enemies. 

In  its  educational  institutions  Germany  took  high  rank  at 
the  time  of  the  French  Revolution,  most  of  her  great  universi- 
ties having  been  founded  long  before  that  time.  Religious 
toleration  and  a  genuine  desire  for  knowledge  tended  to  favor- 
able conditions  for  the  dissemination  of  political  truths. 
While  German  rulers  were  alarmed  at  the  uprising  in  France 
and  arrayed  themselves  on  the  side  ai  kingly  rule,  there  was 
much  response  among  the  people  to  the  demand  for  liberty, 
equality  and  fraternity.  With  the  cry  of  "war  to  the  palace 
but  peace  to  the  cottage,"  Napoleon  was  able  to  recruit  his 
armies  on  German  territory  and  to  attach  many  of  the  smaller 
states  to  his  interests.  Though  himself  a  military  despot, 
Napoleon  succeeded  in  posing  as  the  leader  of  the  multitude 
in  an  attack  on  arbitrary  power,  and  his  successes  were  largely 
due  to  the  rising  spirit  of  the  commonalty.  During  the 
progress  of  the  wars  with  Napoleon  reforms  were  freely 
promised  by  German  rulers,  and  in  1807  under  the  lead  of 
Stein  Prussia  established  a  responsible  ministry  as  the  confi- 
dential advisers  and  executive  agents  of  the  king,  abolished 
serfdom,  removed  the  disability  to  own  land  from  the  common 
people,  and  allowed  to  all  a  free  choice  oif  occupation.  By  the 
Stadteordenung  of  1808  the  right  of  local  self-government 
was  restored  to  the  cities,  and  the  system  of  administration 
was  thoroughly  reformed.     In   1810  Hardenberg  broke  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  497 

bond  between  the  peasants  and  landed  aristocracy  by  making 
the  tenants  absolute  owners  of  two-thirds  their  holdings,  leav- 
ing the  other  third  to  the  landlord.  Yet  more  important  was 
the  establishment  of  the  great  common  school  system  under 
the  guidance  of  William  von  Humboldt,  which  has  been  of 
such  incalculable  benefit.  The  military  system  was  again  re- 
modelled so  as  to  include  in  the  army  the  whole  body  capable 
of  bearing  arms.  In  the  final  struggle  by  which  Napoleon  was 
overthrown,  Prussia  played  a  leading  part.  Thorough  re- 
forms were  also  made  in  the  civil  administration,  and  ap- 
pointments were  based  on  competitive  examinations. 

In  Austria,  though  some  concessions  were  made  tending  to 
relieve  the  oppressed  peasantry,  and  more  were  promised,  no 
marked  change  of  system  was  inaugurated. 

In  1806  Napoleon  succeeded  in  forming  the  Confederation 
of  the  Rhine,  composed  of  central  and  southern  states  with 
himself  as  protector,  thus  detaching  from  Austria  and  Prus- 
sia a  large  German  element.  After  the  first  peace  of  Paris  a 
congress  of  German  state  was  held  at  Vienna  to  rearrange  the 
political  constitution  of  Germany.  Prussia  was  given  part  of 
Saxonv,  the  Rhineland  and  Swedish  Pomerania,  Austria  took 
Salzburg,  Vorolberg  and  Tyrol.  The  members  of  the  Rhenish 
confederation  were  mostly  left  with  their  territory  intact,  the 
kingdom  of  Westphalia  and  other  states  established  by  Napol- 
eon being  abolished.  Hanover  was  made  a  kingdom,  Weimer, 
Mecklenburg  and  Oldenburg  grand  duchies,  and  Lubeck, 
Bremen,  Hamburg  and  Frankfort  free  cities.  The  German 
Bund  was  formed,  composed  of  thirty-nine  states,  each  inde- 
pendent in  its  local  affairs.  The  governing  body  was  a  Diet 
in  which  each  state  was  represented,  sitting  at  Frankfort 
under  the  presidency  of  the  Austrian  plenipotentiary.  The 
Diet  was  authorized  to  settle  all  disputes  between  members  of 
the  confederation,  neither  of  which  was  allowed  to  make  war 
on  another,  nor  to  form  alliances  against  the  interests  of  any 
other  member.  It  was  further  provided  that  each  state  should 
establish  a  constitutional  system  of  government. 

The  restoration  of  the  Bourbons  to  power  in  France  was 
followed  by  a  reaction  in  which  the  kings  again  asserted  their 


498  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

arbitrary  powers.     Austria,  under  the  guiding  hand  of  Met- 
ternich,  continued  to  be  a  harsh  and  grinding  despotism,  ruHng 
over  a  diverse  population  of  Germans,  Magyars,  Slavs,  Ital- 
ians  and   others.      No   steps   were  taken  to   secure  popular 
representation  or  substantial  justice  to  the  lower  stratum  of 
society.     Neither  did  Prussia  proceed  to  form  a  constitutional 
government,  though  a  numlDcr  of  provincial  diets  were  ap- 
pointed.    The  government  soon  began  to  if  ear  the  march  of 
liberal  ideas  at  the  schools,  and  in  1819  a  conference  of  the 
ministers  resulted  in  issuing  a  decree  placing  the  universities 
under  police  supervision  and  providing  for  rigid  censorship 
of  publications.     A  commission  was  also  appointed  to  detect 
secret  poHtical  societies.    In  Nassau,  Weimar,  Bavaria,  Baden 
and  Wiirtemberg  constitutions  were  granted  which  resulted 
in  checking  the  arbitrary  rule  but  little.    The  reactionists  main- 
tained  their  ground   till    1830,   when   constitutional   govern- 
ments were  established  in  Hanover,  Brunswhick,  Saxony  and 
Hesse-Cassel,  and  freedom  of  the  press  was  granted  in  the 
other  constitutional  states.     The  main  advance  made  through 
the  medium  of  the  Diet  was  in  the  abolition  of  trade  restric- 
tions and  the  foundation  of  the  Zollverein,  in  which  all  the 
states  but  Austria  joined.     In  1847,  to  prevent  a  popular  ris- 
ing which  seemed  threatening,  Frederick  William  IV  of  Prus- 
sia summoned  to  Berlin  a  diet,  made  up  of  representatives  of 
the  provincial  diets,  which  formulated  its  demands  ifor  popu- 
lar  representation   in  government,   but  the   king   refused  to 
abate  his  claims  of  power  to  rule  by  right  Divine.     In  the 
following  year  a  popular  convention  was  held  at  Mannheim, 
at  which  four  fundamental  reforms  were  demanded, — free- 
dom of  the  press,  trial  by  jury,  national  armies,  and  popular 
representation.     These  demands  were  universally  adopted  by 
the  liberals,  and  within  a  few  days  thereafter  there  was  a 
liberal  ministry  in  each  of  the  small  states.     In  Austria  Met- 
ternich  was  dismissed,  a  new  cabinet  for  Hungary  appointed 
and  constitutional  government  promised.     In   Prussia  there 
was   a   popular   uprising,    and   Frederick   William   promised 
compliance  with  the  demand   for  constitutional  government. 
An  assemblv  was  summoned,  at  which  the  demands  of  the 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  499 

rdformers  were  discussed.  At  last  the  king  dissolved  the 
assembly,  and  on  Dec.  5,  1848  granted  a  constitution  and 
gave  orders  for  the  election  of  a  representative  chamber.  In 
the  meantime,  at  a  preliminary  meeting  held  at  Heidelberg,  a 
call  was  made  for  all  Germans  who  were  or  at  any  time  had 
been  members  of  the  Diet  to  meet  at  Frankfort  to  consider  the 
subject  of  national  reforms.  About  500  accepted  the  invi- 
tation and  convened.  After  long  discussion  and  the  failure 
of  many  projects  for  a  compact  German  state,  a  scheme  was 
adopted  and  accepted  by  a  number  of  states  under  the  name 
of  The  Union,  and  on  March  20,  1850  a  parliament  consist- 
ing of  two  houses,  chosen  under  the  arrangement,  met  at 
Erfurt.  Austria  again  headed  the  reactionists,  and  under  her 
leadership  representatives  o(f  the  states  met  at  Frankfort  on 
Sept.  4,  1850,  and  proceeded  to  act  as  the  restored  Diet.  Prus- 
sia stood  at  the  head  of  the  Union,  Austria  of  the  old  Bund. 
Prussia  and  its  supporters  however  soon  yielded,  and  from 
June  12,  185 1,  the  old  Diet  was  recognized  and  went  on  with 
its  sittings  as  before  and  the  Union  disappeared.  Following 
the  outbursts  of  1847  ^^^  1848  was  a  period  of  reaction  in 
which  political  offenders,  i.e.  those  opposing  arbitrary  power, 
were  severely  treated,  and  petty  despotism  again  appeared 
triumphant  notwithstanding  the  constitutions.  In  1864  Prus- 
sia took  Schleswig,  Holstein  and  Lauenburg  from  Denmark 
by  force.  In  1866  the  superiority  of  the  military  establish- 
ment of  Prussia  over  that  of  Austria  was  demonstrated  in  a 
most  remarkable  campaign  begun  June  14  and  ended  July  3 
b}'  the  battle  of  Koniggratz,  in  which  Austria  was  completely 
humiliated.  Thereupon  Prussia  annexed  Hanover,  Hesse- 
Cassel,  Nassau,  Frankfort,  Schleswig  and  Holstein.  All  states 
north  of  the  Main  were  forced  into  a  North  German  con- 
ifederation  with  Prussia  at  its  head.  Steps  were  taken  for 
the  formation  of  a  confederate  parliament,  but  the  war  with 
France  in  1870  cleared  the  way  for  the  present  empire.  On 
Jan.  18,  1 87 1  in  the  palace  of  Versailles  and  in  the  presence 
of  a  great  assemblage  of  German  princes  and  officers  the 
Prussian  king  was  proclaimed  emperor  of  Germany.  The  ex- 
isting German  empire  was  thereupon  established   and   sane- 


500  EVO<LUTION  OF  GOVERNMENTS  ANID  LAWS 

tioned  by  Austria  and  the  confederate  parliament.  On  March 
21,  1 87 1,  the  Diet  met  at  Berhn  and  the  constitution  of  the 
North  German  confederation,  which  had  been  accepted  in 
1867  t>y  a  Diet  elected  by  general  ballot,  was  extended  and  re- 
vised to  meet  the  changed  conditions.  By  this  constitution 
all  the  German  states,  except  those  included  with  Austria, 
Hungary,  Holland  and  Belgium,  the  two  last  named  of  which 
of  late  have  not  been  treated  as  strictly  German,  became  con- 
solidated in  the  new  German  Empire. 

The  present  constitution  was  promulgated  April  16,  1871,  by 
the  Kings  of  Prussia,  Bavaria  and  Wiirtemberg  and  the 
Grand  Dukes  of  Baden  and  Hesse.  It  defines  the  territory  oif 
the  empire  and  gives  its  laws  precedence  over  those  of  the 
individual  states.  All  laws  are  required  to  be  proclaimed  in 
the  Imperial  Gazette.  A  common  citizenship  is  established 
throughout  all  Germany,  on  which  no  state  may  place 
limitations. 

The  following  matters  are  under  the  legislative  control  of 
the  empire;  matters  of  domicile,  citizenship,  passports,  trade 
and  industry,  custom  duties,  commerce,  regulation  of  weights, 
measures,  coinage  and  the  emission  of  paper  money,  general 
banking  regulations,  patents  for  inventions  and  copyrights, 
protection  of  trade  in  foreign  countries  and  organization  of 
the  consular  service,  railways,  navigation  on  water  ways 
common  to  several  states,  postal  and  telegraph  affairs,  recipro- 
cal execution  of  judgments  of  one  state  in  another,  the  authen- 
tication of  public  documents,  laws  concerning  notes, 
obligations,  commerce,  crimes  and  legal  procedure,  police 
regulation  of  medical  and  veterinary  matters,  and  laws  re- 
lating to  the  press  and  to  the  right  oif  association. 

The  legislative  power  is  vested  in  the  Federal  Council  and 
Reichstag.  A  majority  of  votes  of  each  body  is  necessary  for 
the  passage  of  a  law.  The  Federal  Council  consists  of  fifty- 
eight  members,  of  which  Prussia  has  seventeen,  Bavaria  six, 
Saxony  and  Wiirtemburg  four  each.  Baden  and  Hesse 
three  each,  Mecklenburg- Schwer in  and  Brunswick  two  each 
and  Saxe-Weimar,  Mecklenburg-Strelitz,  Oldenburg,  Saxe- 
Meiningen,     Saxe-Altenburg,     Saxe-Coburg-Gotha,     Anhalt,. 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  501 

Schwartzburg-Rudolstadt,  Schwartzburg-Sonderhousen,  Wal- 
deck,  Reuss  (elder  branch),  Reuss  (younger  branch),  Schom- 
berg-Lippe.  Lippe,  Lubeck,  Bremen  and  Hamburg  one 
each,  but  the  vote  of  each  state  must  be  cast  as  a  unit. 
The  Federal  Council  has  a  general  oversight  of  the  execution 
of  the  laws  of  the  empire,  appoints  seven  permanent  commit- 
tees from  its  own  members  and  proposes  laws  to  the  Reichstag. 
Each  member  of  the  Council  has  the  right  to  appear  and  be 
heard  in  the  Reichstag,  but  the  same  person  cannot  be  a  mem- 
ber of  the  Council  and  Reichstag  at  the  same  time. 

The  king  of  Prussia  is  made  president  of  the  Confederation 
with  the  title  German  Emperor  with  power  to  declare  war 
and  conclude  peace,  form  alliances,  make  treaties,  accredit 
and  receive  ambassadors;  but  for  a  declaration  of  war  in  the 
name  of  the  empire  the  consent  of  the  Council  is  required, 
except  in  case  of  attack.  He  convenes  the  Council  and  Reich- 
stag, adjourns  and  closes  them.  The  Council  and  Diet  shall 
be  convoked  annually.  The  Council  may  be  convoked  with- 
out'the  Reichstag,  but  the  latter  cannot  be  without  the  Coun- 
cil. The  Chancellor  of  the  empire  presides  in  the  council. 
Bills  laid  before  the  Council  in  the  name  of  the  emperor  and 
adopted  are  presented  to  the  Reichstag  and  advocated  by 
members  of  the  Council  or  by  special  commissioners  appoint- 
ed by  them.  The  Emperor  appoints  and  dismisses  imperial 
officials,  prepares  and  publishes  the  laws  and  supervises  their 
execution.  'The  decrees  and  ordinances  of  the  Emperor 
shall  be  made  in  the  name  of  the  empire,  and  require  for  their 
validity  the  signature  of  the  Imperial  Chancellor,  who  thereby 
takes  upon  himself  the  responsibility  for  them." 

The  members  of  the  Reichstag  are  chosen  by  ballot  for 
three  years'  terms.  An  imperial  official  may  be  elected  to  the 
Reichstag,  but  if  he  accepts  an  office  of  higher  rank,  or  if  . 
a  member  accepts  a  new  appointment  to  a  salaried  office  of 
the  empire  or  a  state,  he  forfeits  his  seat.  The  proceedings 
of  the  Reichstag  are  public,  and  it  may  propose  laws,  and  has 
power  to  judge  of  the  election  of  its  own  members  and  regu- 
late the  mode  df  transacting  its  business.  A  majority  of  all 
constitutes  a  quorum.    In  matters  not  affecting  the  whole  em- 


S02  EVOLUTION  OF  GOVERNMENTS  AND  LAWiS 

pire  only  members  from  the  states  concerned  may  vote.  Mem- 
bers have  a  Hmited  privilege  from  arrest  and  draw  no  pay 
as  such.  Germany  forms  a  custom  and  commercial  union 
with  substantially  free  trade  among  its  states,  except  that  the 
Hanseatic  cities  of  Bremen  and  Hamburg  remain  free  ports 
outside  the  union.  Custom  duties  are  regulated  by  the  empire. 
A  number  of  special  provisions  relating  to  taxation  are 
inserted. 

"Art.  41.  Railways,  which  are  considered  necessary  for  the 
defense  of  Germany,  or  in  the  interest  of  general  commerce, 
may,  by  imperial  law,  be  constructed  at  the  cost  of  the  empire, 
even  in  opposition  to  the  will  of  those  members  of  the  union 
through  whose  territory  the  railroads  run,  without  prejudice 
however,  to  the  sovereign  rights  oif  that  country;  or  private 
persons  may  be  charged  with  their  construction  and  receive 
rights* of  expropriation.  Every  existing  railway  company  is 
bound  to  permit  new  railroad  lines  to  be  connected  with  it,  at 
the  expense  of  the  latter.  All  laws  granting  existing  railway 
companies  the  right  of  injunction  against  the  building  of*  par- 
allel or  competitive  lines  are  hereby  abolished  throughout  the 
empire,  without  detriment  to  rights  already  acquired.  Such 
rights  of  injunction  cannot  be  granted  in  concessions  to  be 
given  hereafter."  Provisions  are  made  for  the  operation  of  all 
railroads  in  harmony  and  all  charges  are  subject  to  Imperial 
control.  Art.  48.  "The  post  and  telegraph  system  shall  be 
organized  on  a  uniform  plan  and  managed  as  state  institutions 
throughout  the  German  Empire." 

Art.  50.  "The  Emperor  has  supreme  supervision  of  the 
administration  of  post  and  telegraph." 

Art.  53.  "The  navy  of  the  Empire  is  a  united  one  under  the 
supreme  command  of  the  Emperor." 

The  merchant  marine  is  made  subject  to  regulation  by  the 
Empire. 

Art.  57.  "Every  German  is  subject  to  military  duty,  and 
in  the  discharge  of  this  duty  no  substitute  can  be  accepted." 

Art.  59.  "Every  German  capable  of  bearing  arms  shall  be- 
long (for  seven  years  to  the  standing  army."  Three  years  in 
active  service,  four  years  in  reserve.    The  next  eleven  articles 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  503 

also  relate  to  military  affairs  and  contain  among  others  the 
following  provisions : 

Art.  64.  "All  German  troops  are  bound  implicitly  to  obey 
the  orders  of  the  Emperor.  This  obligation  shall  be  included 
in  the  military  oath." 

Art.  68.  'The  Emperor  shall  have  the  power,  if  public  se- 
curity within  the  federal  territory  demands  it,  to  declare 
martial  law  in  any  part  of  the  Empire ;  and  until  the  publication 
of  a  law  regulating  the  occasions,  the  form  of  the  announce- 
ment, and  the  effect  of  such  a  declaration,  the  provisions  of  the 
Prussian  law  of  June  4,  185 1  shall  be  considered  in  force! 
Arts.  69  to  73  inclusive  relate  to  finances. 

Art.  69.  ''All  receipts  and  expenditures  of  the  Empire 
shall  be  estimated  yearly,  and  included  in  the  budget.  The 
latter  shall  be  fixed  by  law  before  the  beginning  of  the  fiscal 
year." 

Art.  y(^.  "Disputes  between  the  different  states  of  the  union, 
so  far  as  they  are  not  of  a  private  nature  and  therefore  to  be 
decided  by  the  competent  judicial  authorities,  shall  be  settled 
by  the  federal  council,  at  the  request  of  one  of  the  parties." 

Art.  78.  "Amendments  of  the  Constitution  shall  be  made 
by  legislative  enactment.  They  shall  be  considered  as  rejected 
when  fourteen  votes  are  cast  against  them  in  the  federal  coun- 
cil. The  provisions  of  the  Constitution  of  the  Empire,  by 
which  certain  rights  are  secured  to  particular  states  of  the 
union  in  relation  to  the  whole,  shall  only  be  modified  with  the 
consent  of  the  states  affected." 

An  analysis  df  this  readily  shows  that  the  leading  purpose 
subserved  is  that  of  organization  and  consolidation  of  the 
German  states  into  one  Empire  with  increased  military  effi- 
ciency. There  is  no  article  in  the  whole  instrument  clearly 
framed  to  protect  the  citizens  against  the  usurpation  or  unjust 
use  of  power  by  the  government.  The  Reichstag  as  a  repre- 
sentative body  is  the  sole  check  on  Imperial  power.  Its  legis- 
lative powers  are  not  circumscribed. 

To  an  American  it  seems  strange  that  there  is  no  separate 
title  devoted  to  the  Judiciary.  The  mention  of  courts  is  inci- 
dental and  there  is  not  a  line  establishing  any  independent 


504  EVOLUTION  OF  GOVERNMENTS  ANID  LAWS 

power  in  them,  with  the  sole  exception  that  certain  offenses 
affecting  the  state  are  to  be  tried  before  the  Court  of  Appeals 
of  the  three  free  Hanseatic  towns  at  Lubeck.  The  principal 
mention  of  the  courts  is  in  the  latter  part  of  Article  75,  as 
follows :  ''More  definite  provisions  as  to  the  competency  and 
the  procedure  of  the  Superior  Court  of  Appeals  shall  be  made 
by  imperial  law.  Until  the  passage  of  a  law  of  the  Empire, 
the  existing  competency  of  the  courts  in  the  respective  states 
of  the  Empire,  and  the  provisions  relating  to  the  procedure  of 
those  courts  shall  remain  in  force. "^ 

Each  of  the  states  included  within  the  empire  except  Alsace, 
Lorraine  and  the  two  grand  duchies  of  Mecklenburg  have  con- 
stitutional governments,  and  the  six  larger  states  have  two 
houses  in  their  legislative  bodies  in  which  the  upper  includes 
the  nobility,  clergy  and  representatives  of  the  wealthy  class, 
and  the  lower  is  made  up  of  representatives  chosen  by  the 
voters. 

In  the  completeness  of  its  military  organization  Germany 
may  fairly  be  accorded  first  place  among  all  the  nations  of  the 
earth.  Every  man  is  subject  to  military  service  and  no  substi- 
tution is  allowed,  every  German  capable  of  'bearing  arms  is 
required  to  serve  in  the  standing  army  seven  years  from  the 
age  of  twenty-one  to  twenty-eight.  The  first  three  years  he 
must  spend  in  active  service  and  the  remainder  in  the  reserve. 
After  this  he  belongs  to  the  landwehr  for  five  years  more. 
Those  receiving  a  fixed  standard  of  high  school  training  are 
required  to  serve  actively  only  one  year.  All  males  between 
the  ages  of  seventeen  and  forty-two,  not  included  in  the  above, 
are  members  of  the  landsturm,  liable  to  be  called  into  active 
service  in  case  of  invasion.  The  emperor  is  the  commander  of 
this  immense  force,  which  is  most  thoroughly  and  efficiently 
organized  with  officers  of  various  grades  appointed  by  him. 

Of  the  expenditures  of  the  Imperial  Government  the  army 
and  navy  and  military  pensions  have  absorbed  as  high  as 
eighty  per  cent  of  the  total.  This,  however,  does  not  include 
expenditures  in  the  maintenance  and  operation  of  the  rail- 
roads, posts  and  telegraphs,  which  are  paid  from  earnings  and 
leave  a  net  surplus  of  revenue. 

*  Foreign  Constitutions  1894. 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  505 

Education  is  made  compulsory  throughout  the  empire. 
Most  of  the  expenses  of  the  primary  and  secondary  schools 
are  borne  by  the  local  governments,  but  much  is  done  by  the 
imperial  government  to  promote  the  educational  system.  Its 
great  universities  rank  with  the  best  in  the  world.  Many  of 
these  have  endowments  which  go  far  toward  defraying  their 
expenses.  No  other  country  has  done  more  to  distribute 
among  its  people  the  treasures  of  accumulated  knowledge  than 
Germany,  and  none  has  profited  more  from  the  wisdom  of 
such  a  course.  As  a  result  of  its  most  excellent  school  system 
illiteracy  among  its  people  is  almost  unknown,  and  its  great 
universities  and  technical  schools  are  famed  the  world  over 
for  their  thoroughness  and  breadth  of  learning  as  well  as  for 
their  progressiveness.  At  the  head  of  the  judicial  system  is 
the  Reichgericht,  the  judges  of  which,  90  in  number,  are  ap- 
pointed by  the  emperor.  It  is  the  supreme  court  and  court  of 
appeals  ifor  the  empire.  All  inferior  courts  are  courts  of  the 
separate  states,  but  all  are  subject  to  imperial  legislation. 
Small  civil  cases  involving  amounts  up  to  about  $100  are  de- 
cided by  the  Amtsgericht.  Above  is  the  Landesgericht,  of 
which  there  are  170  in  the  empire,  with  more  extended  juris- 
diction, and  over  this  is  the  Oher  Landesgericht,  the  highest 
court  of  the  state,  exercising  appellate  jurisdiction.  Petty  of- 
fenses are  tried  by  a  judge  and  two  Schoffen:  Serious  crimes 
by  judge  and  jury.  Courts  of  arbitration,  presided  over  by  a 
judge,  are  also  provided  for  commercial  causes.  The  system 
of  procedure  is  rather  more  summary  than  that  prevailing  in 
England  and  the  United  States.  The  law  is  studied  as  a  pro- 
fession, and  advocates  practice  before  the  courts.  The  num- 
ber of  lawyers,  however,  in  proportion  to  population  is 
relatively  very  small.  The  judges  and  members  of  the  pro- 
fession bear  high  rank  for  integrity  and  ability,  and  except  in 
rare  political  causes,  the  administration  of  justice  is  efficient 
and  creditable.  A  summary  of  the  Civil  Code  which  took 
effect  in  1900  will  be  ifound  in  the  Appendix. 

The  political  history  of  Hungary  is  interwoven  with  that  of 
Austria  and  can  best  be  considered  in  connection  with  it. 

The  first  king  of  Hungary  is  called  St.  Stephen,  and  ruled 


So6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

997  to  1038.  He  was  converted  to  Christianity  and  took 
active  measures  to  convert  his  subjects.  He  was  very  zealous 
in  promoting  the  estabhshment  of  churches  and  monasteries. 
The  king  owned' a  large  part  of  the  lands,  from  which  he  re- 
ceived a  portion  of  the  crops  and  military  service  from  his 
retainers  on  them.  He  also  levied  taxes  on  the  products  of 
the  mines  and  exacted  one-thirtieth  the  price  of  merchandise 
sold  at  fairs,  as  well  as  tolls  on  roads,  bridges  and  ferries. 
Presents  to  the  king  were  also  required  from  the  towns  on 
given  days.  The  power  of  the  king  was  not  that  of  an  abso- 
lute ruler  over  the  whole  country,  but  resembled  more  a  great 
proprietor's  over  his  estate.  The  Church  and  the  no'bility  ex- 
ercised over  their  domains  substantially  the  same  authority  as 
the  king  over  his.  At  court  the  king  had  his  lord  palatine, 
court  judge,  lord  of  the  treasury  and  minor  officials.  The 
towns  elected  their  own  judges  and  local  officials.  The  labor- 
ers on  the  estates  of  the  king  and  of  the  nobility  were  without 
political  rights,  and  subject  to  the  authority  of  their  lords. 
The  powers  of  the  king  were  not  clearly  defined.  Appeals  lay 
from  the  acts  of  the  nobles  to  the  king,  but  in  their  own 
domains  the  nobles  were  practically  absolute  masters.  The 
authority  of  the  king  was  theoretically  absolute,  but  subject 
in  fact  to  checks  imposed  by  the  nobility.  A  most  remarkable 
document,  bearing  a  strong  resemblance  to  the  English  Magna 
Charta,  is  called  the  "Golden  Bull,"  extorted  from  Andrew  H, 
who  ruled  1205  to  1235,  given  in  the  form  of  a  letter,  by 
which  he  recited  that,  ''The  nobles  and  others  in  our  realm 
have  suffered  detriment,  in  many  parts,  of  their  liberties  ar 
established  by  King  St.  Stephen,  through  the  power  of  some 
kings,  who  either  ifrom  anger  revenged  themselves  or  listened 
to  the  counsel  of  wicked  advisers  or  sought  their  own  advan- 
tage." It  then  proceeds  to  ordain  that  the  anniversary  of  the 
sacred  king  should  be  celebrated  at  Stuhlweissenburg :  that  the 
king  should  be  present  in  person  or  by  his  palatine  to  hear 
causes ;  that  all  the  nobles  might  freely  assemble  there ;  that  the 
nobles  should  not  be  detained  or  oppressed  except  by  due  pro- 
cess of  law ;  that  no  taxes  should  be  levied  on  the  estates  of  the 
nobles  or  the  clergy;  that  if  a  noble  die  without  male  issue  his 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  507 

daughters  should  inherit  one-fourth  his  property  and  the  rest  he 
might  dispose  of  as  he  pleased,  in  default  of  which  it  should 
go  to  his  next  of  kin,  but  in  case  he  was  absolutely  without 
kin  then  to  the  king.  If  the  nobles  were  called  on  to  go  out 
of  the  country  to  war  he  must  pay  the  expense.  "The  pala- 
tine shall  be  judge  over  all  the  people  of  our  realm  without 
distinction,  but  in  capital  cases  and  matters  of  property  which 
concern  the  nobles,  the  palatine  shall  not  decide,  without  the 
king's  knowledge" ;  that  foreigners  should  not  be  given  lands 
and  should  not  be  elevated  to  dignities  without  the  consent  of 
the  council  of  the  realm ;  that  offices  should  not  be  granted  in 
perpetuity,  and  Ishmaelites  and  Jews  should  be  incapable  of 
holding  them  "excepting  these  four  great  lords,  the  palatine,  the 
banus,  the  court  judges  of  the  king  and  queen,  no  one  shall 
have  two  dignities  at  the  same  time.  Should,  however,  we  or 
any  of  our  successors  at  any  time  be  disposed  to  infringe  upon 
any  of  these  four  orders,  the  bishops  as  well  as  the  other  lords 
and  the  nobles  of  the  realm  shall  be  at  liberty,  jointly  or  singly, 
by  virtue  of  this  letter,  to  oppose  and  contradict  us  and  our 
successors  forever,  without  incurring  the  penalty  of  treason." 
All  the  burdens  were  of  course  borne  by  the  peasants  and 
laborers.  From  the  fruits  oif  their  toil  the  landed  gentry  lived 
in  idleness  and  drunkenness.  Against  the  oppression  of  the 
lord  the  peasant  could  only  appeal  to  the  lord  himself,  with 
the  chance  of  greater  oppression  for  having  made  complaint. 
In  1 5 14  the  peasants  were  gathered  for  the  crusade.  Many 
of  the  lords  opposed  it  because  they  needed  the  laborers  in  the 
fields.  40,000  of  them  assembled  at  Pesth.  Instead  of  march- 
ing against  the  Turks,  under  the  leadership  of  George  Dozsa 
they  marched  against  the  nobles.  They  took  many  castles 
and  massacred  such  of  the  nobles  and  their  families  as  fell 
into  their  hands.  The  nobles  finally  rallied  and  under  the 
lead  of  the  vayvode  of  Transsylvania  defeated  the  peasants 
and  captured  Dozsa,  whom  they  placed  on  a  red  hot  iron 
throne  and  crowned  with  a  red  hot  crown  and  gave  a  red  hot 
sceptre.  Many  others  were  tortured  and  killed.  The  diet, 
which  assembled  soon  after,  ordained  the  perpetual  servitude 
of  the  peasantry,  and  fixed  them  to  the  soil,  which  before  that 
time  they  had  been  allowed  to  leave.    At  the  same  session  was 


5o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

passed  and  confirmed  by  the  king  what  is  termed  the  tri-partite 
code,  compiled  by  Stephen  Verboczy  the  chief  justice.  It  ac- 
corded equal  rights  to  all  the  nobles,  who  could  not  be  deprived 
of  liberty  without  due  trial  and  were  exempt  from  taxation 
and  subject  only  to  the  king  and  as  to  the  peasant  it  provided, 
"The  peasant  has  no  sort  of  right  over  his  master's  land  save 
bare  compensation  for  his  lalbor  and  such  other  rewards  that 
he  may  obtain.  Every  species  of  property  belongs  to  the 
landlord,  and  the  peasant  has  no  right  to  invoke  justice  and 
the  law  against  a  noble." 

Austria,  so  long  the  head  of  the  German  Empire,  has  ceased 
to  be  a  part  of  it,  but  is  still  one  of  the  great  states  of  Europe. 
The  past  century  has  witnessed  the  loss  df  much  of  its  terri- 
tory, including  its  possessions  in  Italy,  but  it  still  governs  a 
large  and  exceedingly  rich  district.  When  in  1806  Napoleon 
established  the  confederation  of  the  Rhine  from  sixteen  Ger- 
man States,  the  Emperor  Francis  renounced  the  title  of  em- 
peror of  the  Romans  and  assumed  that  of  Emperor  of  Austria. 
Though  promises  of  reforms  were  made,  Austria  constantly 
recurred  to  its  despotic  methods,  and  lent  its  aid  to  perpetuate 
arbitrary  rulership  throughout  Europe.  The  only  marked 
step  in  advance  during  the  long  reign  of  Francis,  who  died 
in  1835,  was  the  establishment  of  a  system  of  primary  schools. 
Discontent  grew  among  the  people,  and  in  1846  an  insurrec- 
tion occurred  in  Galicia.  This  was  soon  suppressed,  and  the 
dismemberment  of  Poland  was  completed.  In  1848  far  more 
serious  outbreaks  occurred.  Metternich,  the  counselor  off 
tyranny,  resigned  and  went  to  London.  An  imperial  proc- 
lamation was  issued  abolishing  the  censorship  of  the  press, 
establishing  a  national  guard  and  convoking  a  national  as- 
sembly. Under  the  leadership  of  the  members  of  the  uni- 
versity of  Vienna  the  national  guard  and  academic  legion 
organized  a  committee  and  dictated  laws  to  the  government. 
On  May  17,  the  Emperor  Ferdinand  and  his  wife  fled  to  Inns- 
bruck. Uprisings  in  Italy  followed  and  soon  after  in  Bohemia 
and  Hungary  also.  Civil  war  ensued  between  the  imperial 
supporters  and  the  revolutionists,  which  did  not  end  till  130,- 
000  Russian  troops  invaded  Hungary  in  support  of  the  im- 
perial cause.    The  triumph  of  the  supporters  of  despotic  rule 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  509 

was  accompanied  by  the  slaughter  of  great  numbers  in  battles 
and  by  shooting  and  hanging  the  leaders  of  the  revolt  who 
were  captured.  The  congress  organized  by  the  revolutionists 
was  dissolved  and  the  emperor,  of  his  own  motion,  promulga- 
ted a  constitution.  Many  reforms  and  internal  improvements 
were  now  undertaken,  but  the  old  tendency  to  relapse  into 
military  despotism  soon  asserted  itself,  and  on  Jan.  i,  1852,  it 
was  announced  that  the  constitution  was  abolished.  In  1859 
the  combined  forces  of  France  and  Sardinia  drove  the  Aus- 
trians  from  Italy,  and  in  March  1 860  the  emperor  promulgated 
a  new  constitution,  by  which  he  declared  that  the  right  to 
enact,  alter  and  abolish  laws  should  thereafter  be  exercised  by 
himself  and  his  successors  only  with  the  cooperation  of  the 
Reichsrath.  This  body  was  established  for  the  empire  and 
to  be  composed  of  representatives  of  the  several  kingdoms  in- 
cluded within  it.  On  Feb.  27,  1861,  it  was  decreed  that  their 
former  constitutions  should  be  restored  to  Hungary,  Croatia, 
Slavonia  and  Transsylvania.  At  the  same  time  a  law  was 
promulgated  providing  for  the  representation  of  the  different 
portions  of  the  empire  in  the  Reichsrath,  which  was  made  up 
of  two  bodies,  a  house  df  peers  and  one  of  deputies.  On  May 
I,  1 86 1,  the  new  Reichsrath  was  formally  opened  by  the  em- 
peror in  a  speech  in  which  he  said,  "that  liberal  institutions 
with  the  conscientious  introduction  and  maintenance  of  the 
principles  of  equal  rights  to  all  the  nationalities  of  his  empire, 
of  the  equality  of  all  his  subjects  in  the  eye  of  the  law,  and 
of  the  participation  of  the  representatives  of  the  people  in  the 
legislation,  would  lead  to  a  salutary  transformation  of  the 
whole  monarchy."  Hungary,  Croatia,  Slavonia  and  Transyl- 
vania declined  to  send  representatives,  claiming  separate  con- 
stitutions. After  the  humiliating  ddfeat  by  the  Prussians  in 
1866,  the  emperor  turned  his  attention  to  the  improvement  of 
the  affairs  of  his  empire.  The  Hungarians  were  in  passive  re- 
bellion, refusing  to  pay  their  taxes.  In  1865,  the  emperor 
had  recognized  the  necessity  of  self-government  for  Hungary 
in  local  affairs,  and  on  Nov.  19,  1866,  by  an  imperial  rescript, 
he  promised  the  appointment  of  a  responsible  ministry  and  the 
restoration  of  municipal  self-government.  Baron  Beust,  a 
Saxon  and  a  Protestant,  was  made  prime  minister  of  the  em- 


510  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

pire.  In  1867  the  Reichsrath  assembled  at  Vienna,  and  many 
important  measures  of  reform  were  adopted.  On  June  8, 
1867  the  emperor  and  empress  were  crowned  king  and  queen 
of  Hungary  at  Pesth,  at  which  time  pardon  and  amnesty  for 
poHtical  offenses  were  granted.  ReHgious  toleration  was  ac- 
corded by  the  Reichsrath.  In  1873  the  power  of  choosing 
members  of  the  Reichsrath  was  transferred  from  the  provin- 
cial diets  to  the  voters. 

Under  its  present  constitution  Austria-Hungary  recognizes 
the  hereditary  succession  to  the  throne  by  primogeniture  in 
the  male  line  of  the  house  of  Hapsburg-Lothringen  and,  on 
the  failure  of  male  heirs,  in  the  female  line.  Two  distinct 
states  are  recognized  as  joined  for  common  ends,  each  having 
its  own  ministers  and  legislative  bodies.  These  are  subor- 
dinate to  a  controlling  body  called  the  Delegations,  consisting 
of  sixty  members  of  each  state,  two-thirds  elected  by  the  lower 
house  and  one-third  by  the  upper  house  of  each  parliamentary 
body.  They  usually  sit  and  vote  in  two  chambers,  one  -for 
Austria  and  the  other  for  Hungary,  but  in  case  of  disagree- 
ment they  all  sit  together,  and  the  decision  of  a  majority  is 
binding  on  both  states  when  approved  by  the  emperor.  The 
administration  of  the  empire  is  divided  into  three  executive 
departments,  Foreign  Affairs,  Ministry  of  War,  Ministiy  of 
Finance.  These  ministers  are  accountable  to  the  Delegations. 
The  Reichsrath  of  Austria  consists  of  an  upper  and  lower 
house.  The  former  is  composed  of :  First,  Princes  of  the 
Imperial  House;  Second,  Heads  of  noble  houses  of  high 
hereditary  rank;  Third,  Archbishops  and  bishops  with  the 
rank  of  princes;  Fourth,  Li/fe  members,  nominated  by  the 
emperor  for  distinguished  services.  The  lower  house  is  com- 
posed of  three  hundred  and  fifty-three  members  elected  by  all 
citizens  possessing  a  small  property  qualification.  The  em- 
peror convokes  the  Reichsrath  annually  and  nominates  the 
presiding  officers  of  each  house  from  among  its  members.  It 
has  general  legislative  powers  on  matters  of  trade,  finance, 
railways,  posts,  telegraphs,  customs,  mints,  military  service, 
etc.  Members  of  either  house  may  propose  new  laws,  which 
must  receive  the  sanction  of  both  houses  and  the  emperor. 
The  executive  functions  for  Austria  are  vested  in  a  Ministerial 


GERMANY,  AUSTRIA,  HUNGARY  AND  POLAND  511 

Council  presided  over  by  the  emperor  or  minister  president 
and  made  up  of  ministers  of  the  interior,  of  reHgion  and  edu- 
cation, finance,  commerce,  agriculture,  national  delfense,  and 
justice.  There  are  also  local  diets  in  the  seventeen  provinces 
with  jXDwers  over  local  concerns. 

The  Hungarian  parliament  also  has  an  upper  and  a  lower 
house,  known  as  the  House  of  Magnates  and  the  House  of 
Representatives.  The  former  is  made  up  of  three  princes  of 
the  reigning  house  having  estates  in  Hungary,  thirty-one 
Archbishops  and  bishops  and  381  high  officials  and  noblemen. 
The  Lower  House  is  made  up  of  representatives  chosen  for 
three  years  by  all  citizens  paying  a  certain  amount  of  tax  and 
contains  about  450  members.  There  is  a  similar  ministry  in 
charge  of  the  executive  department  for  Hungary  as  in  Austria. 
Great  progress  has  been  made  during  the  last  half  century  in 
the  educational  system,  but  it  is  still  far  behind  that  of  Prussia, 
owing  largely  to  the  domination  of  the  priesthood.  All  child- 
ren from  6  to  12  are  bound  to  attend  the  common  schools. 
There  is  a  fair  system  of  secondary  schools  and  there  are  seven 
7iniversities  at  Vienna,  Gratz,  Innsbruck,  Prague,  Cracuvv, 
Lemberg  and  Pesth.  There  are  also  various  technical  schools. 
Austria-Hungary  has  made  great  progress  in  its  railroads, 
owned  by  the  state,  which  are  a  marked  success  and  afford 
excellent  service  at  exceptionally  low  rates.  It  also  owns  and 
operates  the  telegraphs.  The  judicial  system  for  Hungary  is 
independent  of  the  administration.  The  supreme  court  sits  at 
Buda-Pesth.  There  is  a  secondary  court  of  appeals  at  Moros- 
Vacarhely  in  Transylvania.  Under  these  is  a  system  of  what 
are  termed  royal  courts  and  of  circuit  courts. 

Authorities 
Henderson:    History  of  Germany. 

Henry  Hallam :  History  of  Europe  during  the  Middle  Ages. 
R.  N.  Bain :    Slavonic  Europe. 
James  Fletcher :  History  of  Poland. 
W.  R.  Marfill :  Poland. 
Arminius  Vambery:    Hungary. 
Encyclopaedia  Britannica. 
Continental  Legal  History  Series,  vol.  I. 


CHAPTER  XXI 


Holland  and  Belgium 

The  low  wood  and  marsh  land  near  the  lower  Rhine  were 
part  of  the  Prankish  Empire.  In  the  time  of  Charlemagne,  in 
accordance  with  his  general  policy,  it  was  divided  into  land- 
schafts  and  gaus  ruled  over  'by  dukes  and  counts;  each  gau 
had  its  chief  town,  surrounded  by  a  wall,  wherein  the  count 
administered  justice.  The  gaus  were  divided  into  marks  or 
villages,  in  which  a  headman  acted  as  judge  in  minor  causes. 
The  sovereignty  over  this  territory  alternated  between  French 
and  German  overlords.  The  northmen  also  invaded  and  deso- 
lated it.  The  piratical  incursions  of  the  vikings  and  the  ex- 
posed situation  of  the  country  caused  the  people  to  gather  into 
towns  for  mutual  defense.  These  became  sanctuaries,  not 
merely  for  freemen,  but  serfs  escaping  from  the  estates  of  the 
nobles  were  also  accorded  freedom  and  protection.  Trade, 
manufactures  and  other  characteristics  df  town  life  developed, 
and  the  people  soon  built  ships  and  profited  from  commerce 
and  fisheries.  From  about  A.D.  looo  the  history  of  Holland 
begins  to  take  definite  form  under  its  counts,  whose  allegiance 
shifted  according  to  changing  circumstances  from  the  French 
kings  to  the  German  emperors,  but  with  little  real  control 
from  either. 

William  I,  who  died  in  1224,  granted  charters  to  several  of 
the  towns,  securing  them  in  their  liberties  and  providing  for  a 
regular  administration  of  justice.  Under  Floris  V  the  Hol- 
landers took  part  in  the  strife  between  the  French  and  English 
kings  in  aid  of  the  latter,  and  in  return  gained  valuable  trading 
and  fishing  privileges  by  treaty.  Marked  characteristics  df 
the  early  society  were  the  independent  and  commercial  spirit 
of  the  towns  and  the  resistance  of  the  claims  of  the  nobility 
by  the  burghers.    The  counts  from  time  to  time  were  induced 

512 


HOLLAND  AND  BELGIUM  513 

to  grant  charters  defining  the  rights  of  the  towns.  By  about 
1300  the  imperial  authority  ceased  to  have  any  recognition, 
and  Holland  took  its  place  as  an  independent  state.  Prior  to 
this  time  for  about  400  years  the  real  power  had  been  exer- 
cised by  a  vigorous  line  of  counts,  who  appointed  bailiffs  over 
the  country  districts  and  schouts  as  judges  in  the  towns. 
When  matters  of  great  interest  to  a  city  arose,  the  people  were 
summoned  into  the  public  square  by  ringing  the  great  town 
bell,  and  then  they  decided  the  question  by  vote.  Justice  was 
administered  by  a  man's  peers  in  accordance  with  the  special 
customs  of  Franks,  Saxons  and  Frisians.  The  supplies  of  the 
count  were  furnished  by  taxation,  which  fell  mainly  on  the 
towns  and  early  took  the  iform  of  contributions  in  return  for 
protection,  not  merely  against  foreign  foes,  but  against  the 
extortions  of  the  lesser  nobility,  ajid  in  their  corporate  privi- 
leges against  all.  The  counts  usually  sided  with  the  burghers 
against  the  nobility.  In  the  fourteenth  century  the  towns  join- 
ed the  Hanseatic  League,  from  which  they  were  ejected  in  the 
fifteenth.  During  the  last  half  of  the  fourtenth  century  civil 
strife  over  the  succession  to  the  countship  and  the  struggle 
between  the  burghers  and  the  nobles,  who  formed  the  parties 
of  the  Kabbeljaus  and  Hoeks,  the  "Cods"  and  **Hooks," 
produced  a  state  of  continued  disorder  and  much  fighting.  In 
1436  Holland  passed  under  the  rule  of  Philip  of  Burgundy. 
From  this  time  the  charters  of  the  cities  and  the  liberties  of 
the  burghers  were  treated  with  contempt.  Trade  continued  to 
thrive  under  more  arbitrary  rule,  and  Holland  developed  her 
fisheries  and  her  shipping.  In  the  art  of  printing  and  the 
study  of  the  learning  and  arts  of  the  ancients  the  people  of 
the  cities  of  the  Netherlands  took  an  early  and  leading  part. 
The  dukes  aided  in  the  collection  of  manuscripts  and  the 
founding  of  libraries  and  encouraged  painters  and  authors  in 
their  work,  especially  in  Flanders  and  the  Brabant,  which  in 
these  particulars  were  in  advance  of  Holland.  In  1477  on 
her  accession  to  power  the  cities  secured  from  the  Dutchess 
Mary  her  sanction  off  the  "Great  Privilege,"  which  affirmed 
the  right  of  the  cities  and  provinces  to  hold  diets,  to  approve 
her  choice  of  a  husband  and  to  have  a  voice  in  any  declaration 


514  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  war.    It  declared  that  natives  alone  should  hold  high  office; 
that  no  new  taxes  should  be  levied  without  the  approval  of  the 
estates;  established  one  high  court  for  Holland,  Zealand  and 
Friesland;  and  made  Dutch  the  official  language.     Though 
Philip  of  Burgundy  convened  the  States  General  in  1464,  it 
was  not  till  after  his  time  that  they  were  allowed  real  power. 
In  Holland  the  nobles  collectively  had  but  one  vote,  though  all 
were  permitted  to  sit  in  the  assembly.     Each  of  the  large 
cities  was  also  entitled  to  one  vote.     The  president  of  the 
states,    styled    the   vogt,    became   an    officer    of    importance. 
Through  marriage  of  Philip  with  Joanna  of  Aragon  the  sov- 
ereignty of  the  Netherlands  was  inherited  by  Charles  V,  king 
of  Spain  and  German  emperor.    During  his  reign  and  that  of 
his  son  and  successor  Philip  was  carried  on  that  long  and 
desperate  struggle  for  civil  and  religious  liberty  by  the  people 
of  the  low  countries  against  the  cruel  and  bigoted  Spaniard. 
Never  has  tyranny  appeared  more  cold  and  heartless  than  that 
exercised  in  the  name  of  religion  by  the  bloody  Duke  of  Alva 
and  the  murderous  tribunals  which  tried  by  torture  and  pun- 
ished with  death  the  iconclasts  and  heretics.     The  charters  of 
the  cities  and  the  rights  of  the  States  General  were  disre- 
garded, and  bloody  executions  by  hundreds  and  by  thousands 
followed.    After  opposition  to  the  Spaniards  had  been  crushed 
out  in  the  provinces,  the  Dutch  took  their  ships  and  preyed  on 
Spanish  commerce.     In  1572  the  "Water  Beggars,"  as  the 
naval  Iforce  was  termed,   seized  Briel  at  the  mouth  of  the 
Meuse;  the  struggle  on  land  was  renewed  and  pushed  till  the 
Spaniards  were  driven  out  of  Holland.    In  1581  a  meeting  of 
the  seven  northern  provinces  was  held  at  The  Hague,  which 
declared  their  independence  and  framed  a  constitution  in  ac- 
cordance with  the  principles  of  the  "Great  Privilege"  of  the 
Duchess  Mary,  with  William  of  Orange  as  sovereign.    Under 
the  able  leadership  of  his  son  Maurice  of  Nassau  the  integrity 
of  the  country  was  preserved,  and  Holland  grew  in  importance 
as  a  naval  and  commercial  power,  while  the  rich  provinces  of 
Hainault  and  Brabant  were  desolated  and  almost  depopulated 
as  a  result  of  wars  and  Spanish  misrule.    Toward  the  close  of 
the  sixteenth  century  the  Dutch  seamen  began  to  sail  in  distant 


HOLLAND  AND  BELGIUM  515 

seas,  and  in  1602  the  Dutch  East  India  Company  was  iformed. 
During  the  progress  of  the  Thirty  Years'  war,  16 18  to  1648,  a 
separate  treaty  of  peace  was  concluded  with  Spain,  by  which 
the  independence  of  the  provinces  was  recognized,  and  Spain 
abandoned  all  her  claims. 

In  1 65 1  a  great  assembly  of  the  provinces  was  held  for  the 
purpose  of  settling  the  system  of  government.  The  stadt- 
holder,  whose  office  had  been  made  hereditary  in  the  house  of 
Orange,  was  confirmed  as  commander  of  the  military  forces 
and  exclusive  head  of  the  state.  The  legislative  power  was 
vested  in  the  States  General,  made  up  of  deputies  numbering 
at  times  as  many  as  800.  There  was  a  permanent  council  df 
state  and  a  chamber  of  accounts.  Each  province  had  its  own 
stadtholder  and  estates.  Each  town  had  its  chief  minister  and 
each  great  city  a  senate ;  that  of  Amsterdam  containing  thirty- 
six  burghers,  who  were  charged  with  the  maintenance  of 
order,  the  collection  of  taxes,  and  the  administration  of  jus- 
tice. At  first  the  senate  was  elected  for  life  by  the  whole  body 
of  freemen,  but  from  the  sixteenth  century  vacancies  were 
filled  by  cooptation,  and  it  became  a  close  oligarchy.  Other 
towns  were  similarly  organized.  The  senate  named  the  depu- 
ties to  the  States  General.  The  right  of  making  war  and 
peace,  concluding  alliances,  coining  money  and  levying  taxes, 
was  vested  in  the  States  General.  Though  in  the  defense  of 
their  liberties  and  their  country  the  Dutch  had  many  long  and 
desperate  wars,  their  foreign  fKDlicy  was  never  aggressive, 
except  for  the  extension  of  their  trade.  In  this  they  met  with 
great  success  and  were  able  to  obtain  trade  privileges  in  the 
east  not  accorded  to  other  countries.  Their  greatest  acquisi- 
tion was  of  the  rich  island  of  Java,  where  they  rule  over  a 
population  many  times  that  of  Holland  with  very  little  friction 
with  the  natives.  On  the  sea  and  in  manufactures  and  trade 
the  Dutch  continued  to  gain  their  peaceful  victories,  and  also 
carried  on  desperate  struggles  with  Spain  and  England  for 
naval  supremacy. 

No  marked  change  in  the  organization  of  the  state  took 
place  till  the  breaking  out  of  the  French  Revolution.  In  1775 
a  new  constitution  was  formed,  sweeping  away  the  ancient 


5i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

system  and  establishing  in  its  place  an  elective  representative 
government,  but  change  after  change  followed  in  quick  suc- 
cession. In  1805  Bonaparte  imposed  a  new  constitution  and 
a  ruler,  and  in  the  next  year  made  his  brother  king  oif  it  as  a 
dependency  of  France.  In  18 10  he  annexed  it  as  a  part  of  the 
empire.  After  the  overthrow  of  Napoleon  an  assembly  of 
notables  met  and  recalled  the  prince  of  Orange,  who  had  taken 
refuge  in  England,  and  chose  him  king  under  the  title  of 
William  I.  By  the  treaty  of  Paris  Belgium  was  united  to 
Holland  under  the  hereditary  sovereignty  of  the  house  of 
Orange.  The  king  was  given  full  executive  powers  and  the 
initiative  in  proposing  laws.  He  also  appointed  the  council  of 
state.  The  States  General,  composed  of  two  chambers,  was 
the  legislative  body,  and  similar  representative  assemblies  were 
provided  ifor  each  province.  The  union  of  Holland  and  Bel- 
gium was  not  the  result  of  any  popular  movement,  but  was 
an  incident  of  the  settlement  of  the  balance  of  power  by  the 
leading  states  of  Europe  at  the  conclusion  of  the  Napoleonic 
wars.  Belgium  had  never  had  any  well  defined  national  exis- 
tence, having  been  border  and  disputed  territory  over  which 
the  rulers  of  France,  Germany,  Spain  and  Burgundy  extended 
or  were  forced  to  yield  their  sovereignty  according  to  the 
varying  fortunes  of  war  and  diplomacy.  There  was  never  a 
close  ^bond  of  sympathy  between  the  Belgians  and  Dutch,  the 
former  being  more  closely  allied  with  the  French  and  the  latter 
with  the  Germans.  In  1830  a  revolt  broke  out  at  Brussels, 
as  a  result  of  which  there  was  a  conflict  between  Holland  and 
the  people  of  Belgium.  A  cessation  olf  hostilities  resulted 
from  the  mediation  of  the  great  powers  and  a  convention  of 
delegates  chosen  from  the  different  provinces  of  Belgium  as- 
sembled at  Brussels,  which  declared  for  independence  and  a 
constitutional  hereditary  monarchy.  In  June,  1831,  Prince 
Leopold  of  Saxe-Coburg  was  chosen  king,  under  the  condi- 
tion that  hie  would  accept  the  constitution  and  swear  to  main- 
tain the  national  independence  and  territorial  integrity,  which 
he  did.  Further  conflicts  took  place  between  the  two  coun- 
tries, and  in  1832  France  and  England  proceeded  to  enforce 
submission  by  Holland  to  the  determination  of  the  powers  by 


HOLLAND  AND  BELGIUM  517 

force  of  arms.  In  May,  1833,  after  much  negotiation,  a 
treaty  was  concluded  providing  for  the  settlement  oif  bounda- 
ries and  the  separation  of  the  two  countries. 

The  present  constitution  of  Holland  is  that  established  in 
1 81 4  as  revised  in  1848.  The  crown  is  hereditary  by  primo- 
geniture in  both  male  and  female  lines.  The  king  is  the 
executive  head  with  power  to  declare  war  and  make  peace. 
He  appoints  the  ministers,  of  whom  there  are  eight :  namely,  of 
the  interior,  the  watersaat  (including  trade  and  industry,  rail- 
ways, post  offices,  etc.)  of  justice,  war,  finance,  marine,  the 
colonies  and  foreign  affairs.  Though  appointed  by  the  king 
the  ministers  are  accountable  to  the  country  for  the  conduct 
of  affairs.  The  law-making  power  is  vested  in  the  king  and 
States  General,  composed  of  two  houses.  The  members  of  the 
upper  house  are  chosen  by  the  several  provinces  from  those 
paying  the  largest  direct  taxes  and  contains  thirty-nine  mem- 
bers holding  for  terms  oif  nine  years,  one-third  of  the  members 
being  chosen  every  three  years.  The  members  of  the  lower 
house  are  chosen  by  electoral  districts  by  all  citizens  paying 
the  requisite  tax,  varying  from  twenty  to  one  hundred  and 
sixty  guilders.  One  member  is  chosen  for  every  forty-five 
thousand  people.  There  is  also  a  council  of  state,  appointed 
by  the  king,  to  which  all  legislation  is  submitted  by  the  king 
before  being  presented  to  the  states,  and  all  enactments  by 
the  States  General  are  submitted  to  the  council  before  approval 
by  the  king.  In  each  province  there  are  similar  assemblies 
having  charge  of  local  matters,  made  up  of  two  houses  chosen 
by  the  same  electors.  The  presidents  of  these  assemblies  are 
appointed  by  the  king.  At  the  head  of  every  commune  is  a 
communal  council  chosen  by  the  people.  The  president  of 
the  council,  the  burgomaster,  is  appointed  by  the  king  for  six 
years.  There  are  eleven  provinces  and  about  1130  communes. 
The  administration  of  justice  is  by  a  system  of  courts,  at  the 
head  of  which  is  the  Supreme  Court  sitting  at  The  Hague, 
with  inferior  local  courts  in  each  province  and  commune. 

The  people  of  Holland  enjoy  complete  religious  liberty, 
freedom  of  speech,  of  association,  and  the  right  of  trial  by  jury. 
No  country  furnishes  a  better  illustration  of  the  possibilities 


5i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  overcoming  natural  difficulties  by  combined  effort  and  of 
turning  adverse  natural  conditions  to  advantage  than  Holland. 
As  formed  by  nature  the  district  now  included  in  the  kingdom 
was  exposed  to  inundation  from  the  sea;  much  of  it  so  low 
and  marshy  as  to  be  unfit  ifor  cultivation  and  much  actually 
below  sea  level.  The  soil  was  not  of  exceptional  fertility  in 
general,  and  much  of  it  was  sandy  and  poor.  By  a  system  of 
dykes  more  than  1550  miles  in  length,  some  of  which  are  now 
utilized  as  beds  for  railways,  not  only  have  the  low  marsh 
lands  been  protected  and  reclaimed,  but  large  districts  have 
been  gained  from  the  sea  and  converted  into  fruitful  fields. 
Though  well  supplied  with  rivers,  the  interior  communication 
was  early  supplemented  by  an  extensive  system  of  canals. 
These  and  the  flooding  of  lowlands  by  cutting  the  dykes  have 
in  times  past  materially  affected  military  operations  and  been 
utilized  in  the  defense  of  the  country.  From  the  earliest  times 
the  people  have  found  it  necessary  to  unite  their  efforts  in 
overcoming  natural  iforces  as  well  as  in  fighting  other  people. 
This  induced  a  spirit  of  association  and  also  led  to  a  perception 
of  the  essential  principles  to  be  observed  in  combining  for 
common  enterprises  and  sharing  the  benefits.  The  people  of 
Holland  were  among  the  leaders  in  modern  times  in  the  study 
and  elaboration  of  legal  principles.  Grotius,  1583  to  1645,  ^s 
still  regarded  as  a  leading  authority  on  international  law.  In 
the  controversies  with  Charles  and  Philip  of  Spain  the  Hol- 
landers argued  most  tenaciously  for  the  observance  of  their 
charters  and  the  protection  of  the  laws,  as  well  as  for  religious 
liberty,  though  in  the  condemnation  of  Barneveldt  and  Gro- 
tius and  the  execution  of  the  former,  as  well  as  in  many  other 
judicial  outrages,  they  showed  that  the  spirit  of  cruelty  and 
intolerance  was  not  confined  to  one  creed  or  sect.  Still 
throughout  all  the  bloody  persecutions  there  was  a  marked 
disposition  to  proceed  by  established  forms  and  to  execute 
only  after  the  forms  of  law  had  been  complied  with. 

Combined  effort  was  also  necessary  in  carrying  forward 
commercial  enterprises,  and  the  Dutch  were  among  the  earliest 
to  take  full  advantage  of  the  opening  of  trade  with  distant 
lands.     By  negotiations  and  a  generally  pacific  policy  they 


HOLLAND  AND   BELGIUM  519 

established  trading  posts  in  the  East  and  West  Indies,  Asia 
and  America,  which  afforded  their  merchants  advantages, 
from  which  they  made  great  gains  and  took  leading  rank  in 
the  commercial  world.  The  wars  of  Holland  have  with  but 
rare  exceptions  been  purely  defensive.  In  these  the  people 
have  exhibited  a  degree  of  stubborn  bravery  and  of  brilliant 
daring  never  surpassed  by  any  people.  It  has  been  in  all  its 
histoiy  mainly  a  collection  of  towns,  and  the  democratic  spirit, 
engendered  by  close  contact  of  many  people  engaged  in  indus- 
trial pursuits,  has  never  been  successifully  crushed  by  any 
ruling  power.  On  the  other  hand  the  aristocratic  spirit  has 
grown  from  generation  to  generation  among  the  families  pos- 
sessed of  great  wealth,  and  the  present  constitution  with  its 
property  qualification  for  voters  shows  the  effects  of  this 
tendency.  Commercial  and  industrial  pursuits  necessitate  a 
degree  of  education  not  found  among  the  peasant  communi- 
ties of  Europe  prior  to  the  eighteenth  century,  and  the  people 
of  Holland  of  the  fifteenth,  sixteenth  and  seventeenth  cen- 
turies enjoyed  as  large  a  measure  of  education  as  any  in 
Europe.  The  extent  of  the  domination  of  the  Dutch  is  not 
fully  measured  by  their  territorial  possessions.  They  early 
learned  the  mastery  gained  by  the  investment  of  money  and 
the  acquisition  of  legal  titles  to  property,  and  Dutch  capital 
has  been  placed  in  America  and  elsewhere  in  such  manner  as 
to  still  further  extend  the  power  and  influence  of  her  capital- 
ists and  financiers.  In  perception  and  utilization  of  the  advan- 
tages of  combination  and  mutual  help  in  peaceful  enterprises 
no  modern  people  and  perhaps  none  of  any  age  have  excelled 
them.  The  educational  system  provides  for  general  primary 
instruction  but  is  not  so  thorough  as  that  of  Prussia.  It  is 
being  improved.  There  are  four  universities  of  high  rank,  at 
Utrecht,  Leyden,  Groningen,  and  Amsterdam. 

The  constitution  of  Belgium  adopted  in  1831  exhibits  more 
marks  of  modern  influences  than  that  of  Holland.  The  latter 
has  its  traditions  and  survivals  of  ancient  organizations,  while 
the  former  is  thoroughly  modern. 

The  first  title  relates  to  the  boundaries  and  division  into 
provinces.     The  second  is  much  like  the  bills  of  rights  in  the 


520  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

constitutions  of  the  American  states,  and  contains  among 
others  the  following-  important  provisions : 

Art.  6.  'In  the  State  there  shall  be  no  distinction  of  order. 
All  Belgians  are  equal  before  the  law ;  they  alone  are  admitted 
to  civil  and  military  employments,  with  such  exceptions  as 
may  be  established  by  law  for  particular  cases." 

Art.  7.  "Individual  liberty  is  guaranteed.  No  one  can  be 
prosecuted,  except  in  the  cases  specified  by  law  and  in  the 
form  which  it  prescribes.  Save  when  taken  in  the  act,  no  one 
shall  be  arrested  except  by  virtue  of  an  order  issued  by  a 
judge.  It  shall  be  shown  at  the  time  of  the  arrest  or  not  later 
than  twenty-four  hours  thereafter." 

Art.  8.  "No  one  shall  be  deprived  against  his  will  of  the 
judge  whom  the  law  assigns  him." 

Art.  9.  "No  penalty  shall  be  established  or  enforced  except 
by  law." 

Art.  10.  "The  home  is  inviolable.  No  search  shall  be  made 
except  in  cases  provided  for  by  law  and  in  the  form  which  it 
prescribes." 

Art.  II.  "No  one  shall  be  deprived  of  his  property  except 
for  public  use  and  then  only  in  the  cases  and  in  the  manner 
provided  for  by  law ;  and  a  just  indemnity,  to  be  ascertained 
beforehand,  shall  be  paid." 

Art.  14.  "The  freedom  of  religions,  their  public  exercise,  as 
well  as  the  liberty  of  expressing  their  opinions  on  every  mat- 
ter, are  guaranteed;  reserving  the  right  of  repressing  crimes 
committed  in  the  exercise  of  these  liberties." 

Art.  15.  "No  one  shall  be  compelled  to  observe,  in  any  man- 
ner whatsoever,  the  rites  and  ceremonies  of  any  (form  of  re- 
ligion, nor  be  required  to  observe  days  of  rest." 

Art.  17.  "Public  education  shall  be  free,  every  preventive 
measure  is  prohibited.  The  repression  of  crime  shall  be  regu- 
lated by  law.  Public  instruction  given  at  the  expense  of  the 
state  shall  also  be  regulated  by  law." 

Art.  18.  "The  press  is  free,  no  censorship  shall  ever  be  es- 
tablished, nor  can  writers,  editors  or  printers  be  required  to 
give  bonds.  When  the  author  is  known  and  resides  in  Bel- 
gium, the  editor,  printer  or  news  agent  cannot  be  prosecuted." 


HOLLAND  AND  BELGIUM  521 

Art.  19.  "All  Belgians  have  the  right  to  assemble  peaceably 
and  without  arms,  conforming  themselves  to  the  laws  which 
may  regulate  the  exercise  of  this  right,  but  without  being 
obliged  to  obtain  permission  beforehand.  This  regulation 
does  not  apply  to  open  air  meetings,  which  are  entirely  under 
police  regulation." 

Art.  20.  ''Belgians  shall  have  the  right  to  form  associa- 
tions; this  right  cannot  be  suppressed  by  any  preventive 
measure." 

Art.  22.  "The  secrecy  of  the  mails  shall  be  inviolable.  The 
law  shall  determine  who  are  the  responsible  agents  in  the  vio- 
lation of  the  secrecy  of  the  mails." 

Art.  24.  "No  previous  authorization  is  necessary  to  begin 
suits  against  public  officials  for  the  acts  of  their  administra- 
tion, with  such  exceptions  as  may  be  made  regarding  the 
Ministers." 

Title  three  distributes  the  governmental  powers. 

Art.  25.  "All  powers  emanate  from  the  nation.  They  shall 
be  exercised  in  the  manner  established  by  the  constitution." 

Art.  26.  "The  legislative  power  shall  be  exercised  collect- 
ively by  the  king,  the  House  of  Representatives  and  the 
Senate." 

Art.  2y.  "The  initiative  shall  belong  to  each  one  of  the 
three  branches  of  the  legislative  power.  But  all  laws  relative 
to  the  receipts  or  expenses  of  the  state,  or  the  contingent  of 
the  army  must  be  first  voted  by  the  House  of  Representatives." 

Art.  28.  "The  interpretation  of  the  laws  in  an  authorita- 
tive manner  shall  belong  only  to  the  legislative  power." 

Art.  29.  "To  the  king  belong  executive  powers  within  the 
limits  prescribed  by  the  constitution." 

Art.  30.  "The  judicial  power  shall  be  exercised  by  the 
courts  and  tribunals." 

Sessions  of  the  Houses  are  required  to  be  public,  subject  to 
a  right  to  resolve  themselves  into  secret  committees.  Each 
house  judges  of  the  returns  and  qualifications  of  its  members. 
Appointment  by  the  government  to  a  salaried  position  vacates 
the  member's  seat.  A  majority  constitutes  a  quorum.  An 
absolute  majority  is  required  to  pass  a  law,  and  the  vote  must 
be  taken  by  roll  call.     Members  are  privileged  from  arrest. 


522  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Art.  47.  'The  House  olf  Representatives  shall  be  composed 
of  Deputies  elected  directly  by  those  citizens  paying  the  census 
prescribed  by  the  electoral  law,  which  shall  not  exceed  one 
hundred  florins  of  direct  tax  nor  be  below  twenty  florins." 

The  number  of  deputies  shall  not  exceed  one  for  40,000 
inhabitants  and  to  be  eligible  one  must  be  a  Belgian  twenty- 
five  years  old.  The  term  of  office  is  four  years  and  one-half 
are  elected  every  two  years.  Members  have  a  monthly  salary 
of  two  hundred  florins,  except  that  those  who  reside  in  the 
city  where  the  session  is  held  get  no  salary.  The  senate  is 
composed  of  half  the  number  of  the  House,  elected  for  eight 
years,  one-half  every  four  years,  but  entirely  renewed  in  case 
olf  dissolution.  Senators  must  be  Belgians  forty  years  old  and 
pay  at  least  1000  florins  direct  taxes,  including  licenses  in 
Belgium.     They  receive  no  salary. 

The  constitutional  powers  of  the  king  are  conferred  on 
Leopold  of  Saxe-Coburg  and  made  hereditary  in  the  male  line 
by  primogeniture.  In  case  of  failure  of  such  heirs  the  king 
may  name  his  successor,  with  the  consent  of  the  two  houses. 
The  king  cannot  be  chief  of  another  state  without  the  assent 
of  the  two  houses. 

Art.  63.  'The  person  of  the  king  shall  be  inviolable,  his 
ministers  shall  be  responsible." 

Art.  64.  *'No  act  of  the  king  shall  have  any  effect,  if  it  be 
not  countersigned  by  a  Minister  who,  by  this  act  alone,  makes 
himself  responsible."  "The  king  appoints  ministers,  confers 
grades  in  the  army,  and  appoints  officers  of  the  general  ad- 
ministration and  foreign  affairs,  and  such  others  as  are  au- 
thorized by  law.  He  has  no  power  to  suspend  the  laws.  The 
king  commands  the  army  and  navy,  declares  war,  and  makes 
treaties.  Treaties  of  commerce  or  imposing  obligations  on 
the  Belgians  must  be  ratified  by  both  houses."  ''No  cession, 
no  exchange,  no  addition  of  territory  can  take  place  except  by 
law."  "The  houses  shall  be  in  session  each  year,  for  at  least 
forty  days,"  and  the  king  may  convoke  them  on  extraordinary 
occasions  and  may  dissolve  them  simultaneously  or  separately. 
He  may  remit  or  reduce  sentences,  except  those  against  the 
ministers.     He  may  confer  titles  of  nobility. 


HOLLAND   AND   BELGIUM  523 

Art.  68.  "No  one  shall  be  a  Minister  who  is  not  a  Belgian 
by  birth  or  who  has  not  received  supreme  naturalization." 

Art.  yj.  "The  law  shall  fix  the  civil  list  for  the  duration  of 
each  reign." 

Art.  78.  "The  king  shall  have  no  other  powers  than  those 
w^iich  the  constitution  formally  confers  upon  him  and  the  par- 
ticular laws  passed  in  pursuance  of  the  same  constitution." 

In  case  of  vacancy  of  the  throne  the  ministers  exercise  the 
kings'  powers,  and  the  two  houses  provide  a  regency  during 
the  minority  or  disability  of  the  king. 

Art.  87.  ''No  member  of  the  Royal  Family  shall  be  a 
minister." 

Art.  88.  "The  Ministers  shall  have  a  deliberative  voice  in 
one  or  the  other  house  only  when  they  are  members  thereof. 
They  shall  have  free  access  to  each  of  the  houses  and  must  be 
heard  when  they  demand  it.  The  houses  may  require  the 
presence  of  the  Ministers." 

Art.  89.  "In  no  case  shall  the  verbal  order  or  writ  of  the 
king  relieve  a  minister  from  his  responsibility." 

Impeachments  of  ministers  are  tried  before  both  houses  in 
joint  session.  Articles  92  to  107  inclusive  relate  to  Judicial 
Power. 

Art.  94.  "No  tribunal  nor  civil  court  shall  be  established 
except  by  law.  No  extraordinary  commissions  or  tribunals 
shall  be  established  under  any  name  whatsoever." 

One  Court  of  Appeals  for  all  Belgium  is  established  with 
no  original  jurisdiction  except  in  the  trial  of  ministers.  Court 
proceedings  must  be  public,  except  when  dangerous  to  public 
order  or  morals  and  formally  decided  so  to  be.  Jury  trials 
are  required  in  all  criminal  matters.  All  judicial  officers  are 
named  directly  by  the  king.  Judges  are  appointed  ifor  life 
with  salaries  fixed  by  law,  and  prohibited  from  accepting  any 
other  salaried  appointment.  The  powers  and  procedure  of 
all  courts  civil  and  military  are  subject  to  regulation  by  law. 
Provincial  and  local  institutions  are  regulated  by  law  on  the 
principles  of  direct  election,  local  self-government  in  local 
afifairs,  publicity  of  council  meetings,  budgets  and  accounts. 

Art.  no.  "No  tax  for  the  benefit  of  the  state  shall  be 
established  except  by  law." 


524  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Art.  III.    "AH  state  taxes  shall  be  voted  annually." 

A  court  of  accounts,  charged  with  the  examination  of  the 
accounts  of  the  general  administration,  with  members  named 
by  the  House  of  Representatives  is  established.  Title  V  relates 
to  the  army  and  requires  all  matters  relating  to  its  numbers, 
method  of  recruiting  and  organization  to  be  regulated  by  law. 

Art.  128.  "Every  foreigner  on  Belgian  territory  shall  enjoy 
the  protection  accorded  to  persons  and  property,  with  such 
exceptions  as  may  be  established  by  the  law." 

Art.  130.  "The  constitution  can  neither  be  suspended  in 
whole  or  in  part."  The  constitution  may  be  revised  after  a 
declaration  that  there  is  need  oif  revision  and  dissolution  of 
the  houses  by  a  two-thirds  vote  of  newly  elected  houses.  This 
constitution  is  clearly  the  most  advanced  of  all  those  retaining 
a  king  as  head  of  the  state.  In  practice  time  has  demonstrated 
the  wisdom  of  its  provisions,  and  Belgium  with  the  most  dense 
population  of  any  European  country  enjoyed  a  high  degree  of 
prosperity  and  had  kept  clear  of  destructive  wars  until  invaded 
by  the  Germans  in  August,  191 4. 

In  its  provision  requiring  authoritative  interpretations  of 
the  law  to  be  made  only  by  the  law-making  power,  it  is  in  ad- 
vance of  the  American  constitutions. 

In  each  province  there  is  a  governor  named  by  the  king  and 
a  provincial  council  elected  by  the  people.  The  affairs  of  the 
communes  are  also  conducted  by  councils  chosen  by  the  people 
for  terms  of  six  years  and  a  burgomaster  appointed  by  the 
king  from  among  the  members  of  the  council.  There  is  a 
general  primary  school  system,  carried  on  at  the  expense  otf 
the  communes,  and  secondary  schools,  part  supported  by  the 
communes  and  others  by  the  government.  There  are  four 
universities,  at  Ghent,  Liege,  Brussels  and  Louvain.  Besides 
these  there  are  technical  schools  of  high  rank.  In  its  benevo- 
lent and  charitable  institutions  Belgium  takes  high  rank  and 
maintains  many  of  various  classes. 

Much  attention  is  paid  to  the  needs  of  the  working  classes 
and  to  organizations  designed  to  assist  them.  There  are  not 
only  savings  banks  and  mutual  assistance  societies,  but  charity 
workshops  are  provided  at  Ghent,  Liege  and  other  towns. 


HOLLAND  AND  BELGIUM  525 

where  indigent  laboring  men  out  of  employment  are  relieved. 
These  are  not  only  means  of  temporary  relief  to  the  necessi- 
tous, but  are  designed  as  schools  of  instruction  and  to  encour- 
age industry  among  those  who  otherwise  might  become 
criminals  or  beggars.  There  are  also  manufacturing  schools 
for  girls,  where  they  are  taught  to  make  fabrics,  etc.  Liberal 
provisions  are  made  for  the  care  of  the  insane,  diseased  and 
infirm  and  for  temporary  relielf  to  the  indigent. 

The  judicial  system  consists  of  a  court  of  cassation  at  Brus- 
sels, composed  of  a  president  general,  a  president  of  the 
chamber  and  fifteen  councillors.  It  has  power  to  revise  the 
action  of  inferior  courts  and  reverse  their  decisions  for  errors 
of  law.  It  is  divided  into  two  chambers,  one  for  civil  and  the 
other  for  criminal  causes.  There  are  three  courts  of  appeal, 
one  each  at  Brussels,  Ghent  and  Liege.  In  the  capital  of  each 
13rovince  is  a  court  of  assize,  composed  of  a  councillor  deputed 
from  one  of  the  courts  of  appeals  and  two  judges  chosen  from 
among  the  presidents  and  judges  of  the  primary  tribunal 
where  the  court  is  held.  This  court  has  jurisdiction  of  crimes 
and  the  trial  is  by  a  jury  of  twelve,  chosen  from  a  panel  of 
thirty  by  lot.  In  each  arrondissement  is  a  court  of  primary 
jurisdiction'  of  civil  causes  and  misdemeanors.  The  number 
of  judges  in  these  varies  from  three  to  ten.  There  are  also 
tribunals  of  commerce  in  the  principal  towns.  Appeals  are 
allowed  in  causes  involving  2000  ifrancs  or  more.  In  the 
manufacturing  towns  there  are  councils  of  prud-hommes, 
composed  of  master  tradesmen  and  workmen,  who  decide  dis- 
putes between  masters  and  workmen.  All  judges  are  appoint- 
ed by  the  king  for  life  and  are  incapable  of  holding  any  other 
ofBce.  The  interests  of  the  state  are  represented  by  advocates 
and  procurators  appointed  by  the  crown.  After  the  settlement 
of  its  disputes  with  Holland  Belgium  entered  on  a  prosperous 
and  peaceful  career.  It  passed  through  the  period  of  1848, 
Avhich  shook  so  many  European  states,  with  but  slight  dis- 
turbance, and  as  a  mining  and  manufacturing  state  has  en- 
joyed a  good  degree  of  prosperity. 

Great  dissatisfaction  has  been  manifested  recently  over  the 
provisions  of  the  electoral  law  which  gives  to  Belgians  over 


526  EVOLUTION  OF  GOVERNMENTS  AND  L.\WS 

thirty-five  years  of  age  if  married  or  widowers  paying  five 
fratics  direct  tax  two  votes  each  and  to  those  having  certain 
other  property  quahfications,  official  status  or  university  diplo- 
mas three  votes  each.  By  this  increased  voting  power  a  min- 
ority of  the  voters  is  given  a  majority  of  the  votes. 

The  future  of  Belgium  at  this  time  appears  to  depend  on 
the  outcome  of  the  war  now  raging  in  Europe.  Though  in  no 
manner  responsible  for  it  the  people  are  suffering  most  of  any 
from  the  war,  and  the  land  is  again  drenched  with  blood  be- 
cause no  efficient  measures  have  been  taken  by  the  great  na- 
tions to  settle  their  controversies  by  reason. 


CHAPTER  XXII 


Switzerland 


The  territory  included  in  modern  Switzerland  passed  suc- 
cessively under  the  rule  of  Romans,  Franks  and  Burgundians, 
without  the  development  of  any  local  national  life.  About 
A.D.  406  or  407  the  Almanni  took  possession  of  northern 
Helvetia,  which  their  descendants  still  occupy.  A  little  later 
the  Burgundians  settled  about  Lake  Geneva  and  soon  acquired 
mastery  over  southern  Helvetia.  The  ancient  Celts  and  Ro- 
mans were  not  exterminated,  but  remained  subject  to  the  in- 
vading tribes.  The  Alemanni  carried  with  them  the  Germanic 
customs  of  land  tenure,  using  pasture  and  waste  lands  in  com- 
mon, and  of  determining  all  public  matters  in  an  assembly  of 
the  freemen.  The  rule  of  Charlemagne  was  extended  over  all 
Helvetia,  and  feudalism  developed  there  substantially  as  else- 
where throughout  western  Europe. 

The  history  of  Switzerland,  as  well  as  the  romantic  legends 
connected  with  its  political  birth,  are  closely  connected  with 
the  rise  of  the  House  of  Hapsburg,  whose  early  seat  was  in 
the  modern  canton  of  Aargau,  with  estates  in  the  cantons  off 
Luzern,  Schwyz  and  Unterwalden.  From  ancient  times  the 
Germanic  tribes  were  accustomed  to  act  in  concert  in  the  asser- 
tion of  their  rights,  and  the  feudal  system  did  not  have  the 
effect  of  obliterating  all  such  organizations  in  the  mountain 
districts  of  Switzerland.  Prior  to  the  controversy  with  the 
Hapsburgs  we  find  the  people  of  Schwyz  and  of  separate  parts 
of  Unterwalden  organized  into  Markgenossenschaften  and 
accustomed  to  meet  and  confer  with  reference  to  their  common 
interests.  In  123 1  Henry  VII  issued  a  charter  to  the  men  of 
Uri,  making  them  immediate  vassals  of  the  empire,  promising 
them  his  protection,  and  setting  them  'free  from  Count  Rudolf 
of  Hapsburg.  In  1240  a  similar  charter  was  granted  by 
Frederick  II  to  the  men  of  Schwyz  the  original  of  which  is 
still  preserved  and  reads : 

527 


528  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

''Having  received  letters  and  messengers  from  you,  to  prove 
and  make  known  your  conversion  and  submission  to  us,  we 
accede  to  your  express  desire  with  gracious  and  affectionate 
good  will ;  we  praise  your  submission  and  loyalty  not  a  little 
in  that  you  have  shown  the  zeal  which  you  have  always  had 
for  us  and  the  empire,  by  taking  protection  under  our  wings 
and  those  of  the  empire,  as  you  are  bound  to  do,  being  freemen 
who  must  turn  to  us  and  the  empire  alone.  Since  therefore 
you  have  chosen  our  rule  and  that  of  the  empire  of  your  own 
free  will,  we  receive  you  loyally  with  open  arms  and  respond 
to  your  sincere  affection  with  our  single  minded  favor  and 
good  will,  by  taking  you  under  our  special  protection  and  that 
of  the  empire,  so  that  we  will  never  allow  you  to  be  alienated 
or  withdrawn  irom  our  sovereign  rule  and  that  of  the  empire." 

This  charter  was  not  recognized  by  the  Hapsburgs  as  taking 
away  their  rights,  and  it  it  difficult  to  see  how  the  Emperor 
could  rightfully  cut  the  feudal  bond,  which  already  existed 
between  Rudolph  and  his  vassals.  In  the  controversy  between 
the  Emperor  Frederick  and  the  Pope  the  people  of  Schwyz 
and  Uri  supported  the  Emperor,  while  Rudolph  supported  the 
Pope.  Frederick  II  was  excommunicated  and  deposed. 
Count  Rudolph,  during  the  conflict,  called  in  the  aid  of  the 
Pope  to  restore  his  vassals  to  their  allegiance,  and  built  the 
fortress  of  New  Hapsburg  near  Lake  Luzern,  from  which 
his  rights  were  enforced. 

In  1273  the  fief  of  Schwyz  passed  from  the  Laufenburg 
line  of  the  house  of  Hapsburg  to  that  of  Austria,  and  in  the 
same  year  Rudolph  was  chosen  emperor.  By  this  chance  the 
imperial  sovereignty,  assumed  by  the  charter  of  Frederick, 
became  united  in  the  person  of  Rudolph  with  that  of  the  house 
of  Hapsburg.  Rudolph  governed  it  as  an  immediate  posses- 
sion, and  it  therefore  ranked  as  ''unmittelhar."  During  his 
reign  an  edict  was  issued,  exempting  the  people  from  answer- 
ing a  summons  to  appear  before  any  tribunal  outside  the  val- 
ley, and  providing  that  they  should  be  answerable  only  to  the 
emperor,  his  sons  or  the  judge  of  the  valley.  Unterwalden 
was  divided  into  a  number  of  marks  and  contained  the  mon- 
astery of  Engelberg  and  many  free  peasants.     Rudolph  died 


SWITZERLAND  529 

July  15,  1 29 1.  On  August  i  of  the  same  year  the  three  forest 
states  concluded  a  league  and  executed  their  first  articles  of 
confederation,  which,  written  in  Latin  on  parchment,  are 
still  preserved.  This  document  is  of  interest,  not  only  as  the 
work  of  the  founders  of  the  Swiss  confederacy,  but  in  the 
light  it  throws  on  the  state  of  society  and  the  conceptions  of 
law  and  social  order  then  entertained  by  the  people.  The  fol- 
lowing is  a  translation : 

'Tn  the  name  of  God,  Amen — 
Honor  and  the  public  weal  are  promoted  when  leagues  are 
concluded  for  the  proper  establishment  of  quiet  and  peace. 

I.  Therefore  know  all  men,  that  the  people  of  the  valley  of 
Uri,  the  democracy  of  the  valley  of  Schwyz  and  the  community 
of  the  mountaineers  of  the  Lower  Valley,  seeing  the  malice  of 
the  age,  in  order  that  they  may  better  defend  themselves  and 
their  own  and  better  preserve  them  in  proper  condition,  have 
promised  in  good  ffaith  to  assist  each  other  with  aid,  with 
every  counsel  and  every  favor,  with  person  and  goods,  within 
the  valleys  and  without,  with  might  and  main,  against  one  and 
all  who  may  inflict  on  any  of  them  any  violence,  molestation 
or  injury  or  may  plot  any  evil  against  their  persons  or  goods. 
2.  And  in  every  case  each  community  has  promised  to  succor 
the  other  when  necessary,  at  its  own  expense,  as  far  as  needed 
in  order  to  withstand  the  attacks  of  evil-doers  and  to  avenge 
injuries,  to  this  end  they  have  sworn  a  bodily  oath  to  keep  this 
without  guile  and  to  renew  by  these  presents  the  ancient 
form  of  the  league,  also  confirmed  by  an  oath.  3.  Yet  in 
such  a  manner  that  every  man,  according  to  his  rank,  shall 
obey  and  serve  his  overlord  as  it  behooves  him.  4.  We  have 
also  promised,  decreed  and  ordained  in  common  council  and 
by  unanimous  consent,  that  we  will  accept  or  receive  no  judge 
in  the  aforesaid  valleys  who  shall  have  obtained  his  oflice  for 
any  price  or  for  money  in  any  way  whatever,  or  who  shall  not 
be  a  native  or  a  resident  with  us.  5.  But  if  dissension  shall 
arise  between  any  of  the  confederates,  the  most  prudent 
among  the  confederates  shall  come  forth  to  settle  the  difficulty 
between  the  parties  as  shall  seem  right  to  them ;  and  whichever 
party  rejects  their  verdict  shall  be  an  adversary  to  the  other 


530  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

confederates.  6.  Furthermore,  as  has  been  estabHshed  be- 
tween them  that  he  who  deHberately  kills  another  without 
provocation,  shall  if  caught,  lose  his  life,  as  his  wicked  guilt 
requires,  unless  he  be  -able  to  prove  his  innocence  of  said 
crime;  and  if  perchance  he  escape,  let  him  never  return. 
Counsellors  and  defenders  of  said  criminal  shall  be  banished 
from  the  valleys,  until  they  be  expressly  recalled  by  the  con- 
federates. 7.  But  if  any  one  of  the  confederates  by  day  or  in 
the  silence  of  the  night,  shall  maliciously  injure  another  by 
fire,  he  shall  never  be  considered  a  compatriot.  8.  If  any  man 
protect  and  defend  the  said  criminal  he  shall  render  satisfac- 
tion to  the  injured  person.  9.  Furthermore  if  any  one  of  the 
con/federates  shall  spoil  another  of  his  goods  or  injure  him 
in  any  way,  the  goods  of  the  guilty  one,  if  recovered  within 
the  valley,  shall  be  seized  in  order  to  pay  damages  to  the  in- 
jured person  according  to  justice.  10.  Furthermore,  no  man 
shall  seize  anothers  goods  for  debt  unless  he  be  evidently  his 
debtor  or  surety,  and  this  shall  only  be  done  with  the  special 
permission  of  his  judge.  Moreover  every  man  shall  obey  his 
judge  and  if  necessary,  must  himself  indicate  the  judge  in  the 
valley,  before  whom  he  ought  properly  to  appear.  11.  And  if 
anyone  rebels  against  a  verdict  and  in  consequence  of  his  ob- 
stinacy, any  one  of  the  confederates  is  injured,  all  the  con- 
federates are  bound  to  compel  the  contumacious  person  to 
give  satisfaction.  12.  But  if  war  or  discord  arise  amongst 
any  of  the  conlfederates,  and  one  party  of  the  disputants  refuse 
to  accept  justice  or  satisfaction,  the  confederates  are  bound 
to  defend  the  other  party.  13.  The  above  written  statutes, 
decreed  for  the  common  weal  and  health,  shall  endure  for- 
ever, God  willing.  In  testimony  of  which  at  the  request  of 
the  aforesaid  parties,  the  present  instrument  has  been  drawn 
up  and  confirmed  with  the  seal  of  the  aforesaid  three  com- 
munities and  valleys. 

Done  Anno  Domini  M  C  C.  L  XXXX  Primo.  in  the  begin- 
ning of  the  month  of  August." 

A  little  more  than  two  months  later  Uri  and  Schwyz  en- 
tered into  a  separate  alliance  with  Zurich  for  three  years.  In 
1294  an  assembly  of  the  men  of  Schwyz  was  held,  at  which  it 


SWITZERLAND  53i 

was  resolved  that  no  one  should  be  permitted  to  sell  or  give 
land  to  monasteries  in  the  valley  or  to  strangers  outside,  under 
heavy  penalty,  and  requiring  the  monasteries  and  foreign 
owners  to  pay  taxes  on  their  holdings  the  same  as  residents, 
and  not  impose  them  on  their  tenants.  During  the  reign  of 
Albrecht  I  the  cantons  were  governed  by  native  Landaman- 
ncn.  The  critical  investigations  of  historians  have  cruelly 
swept  away  the  basis  for  the  poetic  tales  of  Tell  and  his  com- 
patriots and  the  period  when  Swiss  liberty  is  pictured  as  taking 
birth.  In  place  of  these  thrilling  tales  it  is  said  that  the  period 
of  the  reign  of  Albrecht  I  was  uneventful,  as  far  as  the  Swiss 
cantons  are  concerned.  Albrecht  refused  to  confirm  the 
charters,  but  those  of  Uri  and  Schwyz  were  confirmed  by 
Henry  VII,  and  a  charter  was  also  granted  to  Unterwalden. 
These  charters  were  an  assertion  by  Henry  of  Luxemburg, 
as  emperor,  of  sovereignty  in  opposition  to  the  claims  oif  the 
Hapsburgs.  The  question  at  issue  was  not  whether  the  forest 
states  were  free  or  subject  to  the  Hapsburgs  but  whether 
they  were  ''mittelhar"  i.e.  subject  to  the  Hapsburg  as  Haps- 
burgs or  ''immittelhar"  and  subject  only  to  the  emperor 
whether  he  were  a  Hapsburg  or  other  prince. 

In  January,  13 14  a  band  of  Schwyzers  attacked  the  Abbey 
of  Einsiedeln,  which  was  under  the  protection  of  the  Haps- 
burgs, and  after  damaging  much  property  took  aw^ay  the 
monks  as  prisoners  and  drove  off  the  cattle.  This  raid  re- 
sulted from  a  controversy  over  the  use  of  lands  claimed  by 
both  parties.  On  Nov.  15,  131 5,  a  conflict  occurred  at  Mor- 
garten  between  the  confederates  and  a  force  under  Duke 
Leopold,  in  which  the  latter  sustained  a  crushing  defeat.  The 
battle  was  remarkable  in  the  fact  that  a  body  of  mounted  and 
armored  knights  were  defeated  by  peasants  on  ifoot.  On  Dec. 
9,  1 31 5,  a  meeting  was  held  and  the  league  of  the  cantons 
renewed  on  the  same  lines,  with  the  additional  provisions  that : 
''those  lords  or  that  lord  who  shall  attack  one  of  the  Lands 
with  violence,  or  force  unjust  exactions;  such  a  one  or  such 
men  shall  not  be  served  as  long  as  they  have  not  given  satis- 
faction to  the  Lands,"  and  also  ''We  have  also  agreed  that 
none  of  the  Lands  nor  any  among  the  confederates  (Eidgenos- 


532  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

sen),  shall  give  an  oath  or  pledge  to  a  foreigner  without  the 
advice  of  the  other  Lands  or  Confederates."  Three  years 
later  the  Duke  of  Austria  renounced  all  sovereign  rights  over 
the  states,  but  retained  jurisdiction  over  his  estates,  and  peace 
was  concluded.  On  Nov.  7,  1332,  a  perpetual  league  was  con- 
cluded between  the  three  forest  cantons  and  Lucern.  This 
compact  recognized  the  rights  of  Austria  in  Lucern,  and  of 
the  Emperor  over  Uri,  Schwyz  and  Unterwalden,  but  pro- 
vided for  mutual  assistance  in  case  oif  aggression  from  any 
quarter  and  for  arbitration  of  controversies  among  the  con- 
federates. Lucern  had  been  under  ecclesiastical  rule  and  had 
also  obtained  a  charter.  In  1291  Rudolph  of  Hapsburg 
bought  for  his  sons  all  the  possessions  of  the  Abbey  of  Mor- 
bach.  Through  this  purchase  Lucern  passed  to  the  Hapsburgs, 
and  in  1315  the  citizens  had  been  compelled  to  take  part  in 
the  battle  of  Morgaten  against  the  Forest  Cantons. 

At  this  time  Zurich  was  a  city  of  considerable  importance 
and  classed  as  a  free  city.  The  form  of  the  city  government 
was,  however,  oligarchical.  The  people  were  divided  into 
classes  as  nobles,  free  burghers  and  working  men.  The  gov- 
erning body  was  a  council  composed  of  thirty-six  burghers, 
divided  into  three  groups  olf  twelve  each,  a  group  governing 
one  third  of  a  year.  The  working  class  had  no  vote  nor  share 
in  the  city  government.  In  1336  there  was  an  uprising  against 
the  abuses  of  the  council,  led  by  Rudolph  Brun,  who,  though 
of  a  leading  family  and  a  member  of  the  council,  became  the 
champion  of  the  common  people.  A  new  charter  was  formed 
called  the  "First  Sworn  Brief,''  which  provided  that  the  whole 
population  should  swear  to  serve  and  obey  the  Biir germeister 
in  all  things,  without  however,  disparagement  of  the  rights 
of  the  Emperor  and  the  two  church  establishments  of  the 
city.  The  Burgermeister  must  swear  to  protect  all  citizens  to 
the  best  of  his  ability  without  distinction  of  rich  or  poor.  A 
new  council  was  to  be  elected  by  two  classes,  the  first  included 
the  nobles  and  burghers  who  lived  on  their  incomes,  or  were 
in  business  as  merchants,  woolen-drapers,  money  changers, 
goldsmiths  and  salt  dealers.  These  together  formed  an  as- 
sociation, called  the  Konstaffei.     The  workingmen  made  up 


SWITZERLAND  533 

the  second  class  and  were  grouped  into  thirteen  guilds  ac- 
cording to  occupation.  They  were  organized  into  companies 
and  drilled  for  the  defense  of  the  city.  Over  each  was  a 
guildmaster,  elected  semiannually  by  the  guild,  who  became 
ex-officio  a  member  of  the  council.  The  Konstaffel  chose  an 
equal  number,  making  the  full  council  twenty-six  in  number. 
On  important  occasions  all  the  citizens  were  assembled  for 
consultation.  The  Bur  germeister  was  chosen  for  life.  Fol- 
lowing this  change  of  organization  there  was  trouble  with 
the  Count  of  Rappersweil  and  his  followers,  and  on  Feb.  23, 
1350,  an  attack  was  made  on  Zurich  under  the  lead  of  the  son 
of  a  Count  of  Rappersweil  who  had  been  slain  in  a  fight  at 
Grinau.  The  attempted  surprise  resulted  in  the  capture  of 
the  young  count  and  his  principal  followers,  thirty-five  of 
whom  were  barbarously  executed.  Brun,  who  had  been  chosen 
Bur  germeister,  took  Rappersweil,  destroyed  the  castle  and 
devastated  the  possessions  otf  the  Hapsburgs  about  the  head 
of  the  lake.  As  a  result  Zurich  was  confronted  with  the 
forces  of  Austria  and  needed  help.  On  May  i,  1351,  a  per- 
petual league  was  concluded  between  Zurich,  Lucern,  Uriy 
Schwyz  and  Unterwalden,  each  promising  mutual  assistance, 
but  allowing  the  members  to  form  separate  alliances,  and 
pledging  the  forest  states  to  help  maintain  the  existing  form 
of  government  in  Zurich,  if  requested.  War  followed  be- 
tween the  Austrian  duke  and  the  confederates.  On  June 
1352  Glarus  joined  the  confederacy,  Lucern  not  becoming  a 
party  to  the  compact.  On  June  27  Zug,  which  had  been 
taken  possession  of  by  the  confederates,  also  joined  the  league. 
After  an  indecisive  campaign  peace  was  concluded  with  Aus- 
tria, by  which  the  Duke  retained  Glarus  and  Zug. 

The  city  of  Bern  was  also  an  unmittelhar,  free  city,  claim- 
ing charter  rights  under  what  is  called  the  Goldcne  Handveste, 
claimed  to  have  been  granted  by  Frederick  II  in  12 18,  allow- 
ing immunity  from  imperial  taxation,  except  an  annual  home- 
stead tax,  with  the  privilege  of  electing  all  its  municipal 
officers,  exemption  from  military  service  so  far  away  that 
they  could  not  return  at  night,  and  containing  many  other 
regulations  of  municipal  affairs.     In   1295   certain  reforms 


534  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

were  made.  In  addition  to  the  Schiiltheiss  and  council  of 
twelve,  a  board  of  sixteen  was  chosen  from  the  four  wards 
of  the  city,  which  was  empowered  to  elect  a  common  council 
of  200.  Artisans,  theretofore  unrepresented,  were  eligible  to 
the  board  and  council.  Guilds  were  forbidden.  Prior  to  this 
time  Bern  had  vacillated  in  its  allegiance  between  Savoy  and 
Hapsburg.  In  1323  Bern  sought  and  gained  the  alliance  of 
the  Forest  States  and  in  the  following  years  waged  war  and 
took  a  number  of  places  in  the  neighboring  district.  In  June 
1339  the  battle  of  Laupen  was  fought  and  won  by  the  con- 
federates, and  in  1342  peace  was  concluded,  which  was  follow- 
ed in  1355  by  the  admission  of  Bern  into  the  Confederation. 
A  document  similar  to  the  former  ones  was  drawn  up, 
but  not  making  a  close  league  between  the  cities.  Charles  IV, 
having  quarreled  with  Rudolph  IV  of  Austria,  confirmed  the 
charters  and  leagues  of  the  States,  and  in  1364  the  latter  re- 
covered Zug  from  Austria.  In  1375  there  was  an  invasion  of 
a  large  army  of  mercenaries  under  Ingram  de  Courcy,  which 
entered  Argau  and  laid  waste  the  country.  The  attack  was 
directed  rather  against  Austria  than  the  Swiss  but,  as  usual, 
innocent  people  rather  than  the  hostile  ruler  suffered.  The 
people,  however,  rose,  surprised  and  de/feated  a  large  detach- 
ment and  soon  drove  the  remainder  from  the  country.  This 
was  called  the  Gugler  invasion.  After  a  brief  interval  of 
peace  quarrels  were  renewed  with  Austria.  All  the  members 
of  the  league  except  the  Forest  Cantons  and  Glarus  joined 
the  Swabian  Confederacy.  Lucern  refused  to  pay  customs 
to  the  Austrian  bailiff  and  received  and  protected  peasants 
from  the  ducal  estates.  The  bailiffs  seat  at  Rothenburg  was 
destroyed,  Zug  attacked  the  castle  of  St.  Andreas,  Zurich 
marched  against  Rappersweil  and  the  men  of  Schwyz  took 
Einsiedeln.  A  summons  was  sent  to  the  Swabian  cities,  to 
which  they  made  scanty  response. 

In  June  1386  LeopK)ld  III,  who  had  succeeded  to  the  western 
possessions  of  the  Hapsburgs,  organized  an  expedition  to 
crush  the  confederacy.  Many  noblemen  of  the  neighboring 
country  came  to  his  aid,  and  he  also  hired  several  bands  of 
mercenaries.    With  a  force  df  6,000,  including  many  armored 


SWITZERLAND  535 

knights,  he  made  a  feint  of  an  attack  on  Zurich,  but  it  was  his 
purpose  to  strike  Lucern  as  the  heart  of  the  Confederacy. 
With  overweening  confidence  his  forces  moved  along,  un- 
prepared for  an  attack,  when  on  July  9,  1386  they  were  met 
at  Sempach  by  about  1,600  men  of  Lucern  and  the  Forest 
States.  The  battle  which  ensued,  though  not  involving  great 
numbers,  is  one  of  the  most  nota;ble  in  history  from  the  fact 
that  a  very  inferior  force  of  peasants  and  burghers,  fighting 
without  armor,  defeated  so  large  a  iforce  of  armored  knights 
and  professional  soldiers.  Leopold  was  killed  and  his  army 
completely  routed.  Some  circumstances  favored  the  Confed- 
erates. Their  attack  was  a  surprise,  on  ground  unfavorable 
to  horses,  so  that  the  knights  were  forced  to  dismount,  and, 
the  heat  being  intense,  their  armor  was  such  a  serious  encum- 
brance as  to  outweigh  the  protection  it  afforded.  The  tale 
of  the  heroism  of  Winkelried  and  the  share  he  contributed 
to  the  victory  is  a  subject  of  controversy  among  historians, 
though  not  so  thoroughly  discredited  as  the  legends  of  Tell. 
The  results  flowing  from  this  remarkable  battle  were  mo- 
mentous, for  it  finally  broke  the  power  of  Austria  in  the 
Confederation.  The  men  oif  Glarus  at  once  rose  against 
Austria  and  in  April  1388  defeated  at  Nafels  the  army  sent 
against  them,  though  the  Austrian  odds  were  much  greater 
than  at  Sembach.  In  1389  a  peace  for  seven  years  was  con- 
cluded, which  secured  the  confederates  in  all  their  possessions, 
and  on  July  16,  1394  it  was  extended  for  twenty  years.  Only 
a  few  months  after  the  battle  of  Nafels  the  Swabian  cities 
met  a  crushing  defeat  at  the  battle  of  Doffingen,  and  their 
league  came  to  an  end. 

At  the  head  and  front  of  the  confederacy,  thus  /far,  had 
been  the  men  of  the  Forest  States.  Uri,  Schwyz,  Unterwalden 
and  Glarus  were  still  democracies  of  the  ancient  German  type. 
The  people  assembled  in  the  open  air  as  the  Landgemeinde. 
They  chose  a  council  to  transact  current  business,  but  the 
power  of  ultimate  decision,  the  sovereign  authority,  rested 
in  the  whole  body  of  citizens,  and  it  was  their  united  mental 
and  physical  energies  that  produced  such  surprising  results. 
The  rule  of  the  cities  was  more  oligarchical  in  character,  the 


536  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

chief  executive  officer  and  the  council  acting  for  the  whole. 
Bern,  the  most  important  of  the  cities,  was  also  the  most 
oligarchical  in  its  constitution.  The  chief  magistrate,  called 
the  Schultheiss,  and  council  of  twelve  from  the  aristocracy 
had  held  exclusive  authority  till  the  reform  beifore  mentioned. 
The  Pfaffen  brief j  subscribed  by  all  the  confederates  except 
Bern  and  Glarus,  contained  among  others  the  following  im- 
portant provisions,  i.  All  vassals  of  Austria,  whether  clergy, 
laity,  nobles  or  commoners,  taking  abode  in  the  confederation, 
must  swear  fealty  to  the  Confederates.  2.  No  foreign  ec- 
clesiastic, dwelling  in  the  Confederacy,  should  summon  others 
before  foreign  tribunals,  except  in  ecclesiastical  or  matri- 
monial cases.  3.  A  priest  violating  this  rule  should  be  out- 
lawed. 4.  The  Confederates  guaranteed  the  safety  of  all  roads 
from  the  Stuhende  Briicke  on  the  St.  Gothard  route  as  far 
as  Zurich. 

The  covenant  of  Sempach  (S  em  packer  brief)  y  was  executed 
in  1393  by  the  eight  confederates,  and  also  by  Solothurn,  and 
recited  that, 

"Whereas  they  had  fought  and  won  against  Austria  they 
now  desired  to  make  provision  for  future  attacks"  and  pro- 
vided, I.  That  no  confederate  should  break  into  the  house  of 
another  with  intent  to  plunder  either  in  war  or  peace.  2.  That 
the  safety  of  merchants  in  persons  and  goods  be  guaranteed. 
3.  Those  taking  part  in  future  military  expeditions  were  to 
stand  by  one  another,  whatever  might  happen,  like  true  men, 
as  also  their  /forefathers  did.  4.  Should  anyone  desert  in  war 
or  break  any  of  the  rules  of  this  covenant  and  his  guilt  be  at- 
tested by  at  least  two  honorable  men,  he  should  be  promptly 
punished  in  his  person  and  goods,  according  to  the  law  of  the 
state  to  which  he  belonged.  5.  The  wounded  were  to  stay  by 
their  comrades  until  all  danger  was  past  nor  be  considered 
deserters  if  unable  to  help.  6.  Thereafter  no  man  should  be 
allowed  to  take  plunder  until  the  fight  was  at  an  end  and  the 
captains  gave  permission,  and  all  spoils  should  be  equally  dis- 
tributed to  every  man  a  share.  7.  All  monasteries  and  churches 
should  remain  inviolate,  unless  the  enemy  took  shelter  in 
them.     8.  Women  should  not  be  attacked  unless  they  warned 


SWITZERLAND  537 

the  enemy  by  an  outcry  or  themselves  fought,  in  which  case 
they  should  be  punished  as  they  deserved.  9.  None  of  the 
contracting  parties  should  provoke  war  wantonly  without  due 
cause  or  warning  as  provided  in  the  various  leagues. 

This  compact  provided  no  governmental  machinery  for 
common  ends,  but  nevertheless  was  a  substantial  bond.  It 
advanced  principles  of  humanity,  for  the  violation  of  which 
war  should  afford  no  excuse.  Though  by  no  means  free  from 
the  savagery  of  the  times,  in  their  provisions  for  arbitrating 
disputes  among  themselves  and  mitigating  the  horrors  off  war 
the  confederates  exhibited  a  morality  far  in  advance  of  the 
general  spirit  of  the  time. 

The  monastery  of  St.  Gallen,  founded  during  the  seventh 
century,  had  grown  into  a  powerful  ecclesiastical  establish- 
ment with  large  estates.  The  abbots  exercised  authority 
over  the  estates  of  the  monastery,  while  the  supreme  authority 
over  the  district  was  in  the  hands  of  an  imperial  bailiff.  In 
1345  the  Abbott  was  appointed  baliff  over  the  city  of  St. 
Gallen  and  the  villages  of  the  province.  In  1377  five  villages, 
united  under  the  name  of  Appenzell,  joined  the  Swabian  league 
and  created  a  council  of  thirteen,  elected  by  the  people.  In 
1 40 1  an  alliance  between  these  villages,  St.  Gallen  and  other 
communities  suffering  from  the  rule  of  a  tyrannical  abbot, 
/formed  a  league  and  attacked  the  possessions  of  the  Abbot. 
In  1403  Appenzell  was  taken  under  the  protection  of  Schwyz 
and  received  an  Amman  from  it  as  chief  magistrate,  and  pro- 
ceeded to  commit  further  depredations  on  the  abbot's  estate. 
He  gathered  a  considerable  force,  which  met  a  crushing  de- 
feat at  Vogelinsegg.  Again,  on  June  17,  1405,  having  called 
in  the  aid  of  Austria,  an  effort  was  made  to  compel  submis- 
sion to  the  Abbot's  rule,  but  the  mountaineers  were  again  vic- 
torious and  assuming  the  offensive  overran  the  whole  coun- 
try southeast  of  the  Boden  See.  This  country  they  were 
unable  to  hold,  and  in  1407  they  sustained  a  defeat. 

In  141 1  a  new  alliance  was  formed  between  Appenzell  and 
Schwyz,  with  all  the  other  members  of  the  confederacy  ex- 
cept Bern,  by  which,  however,  Appenzell  occupied  a  subordi- 
nate position  under  protection  of  the  other  states.     In  141 2 


538  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

St  Gallen  was  also  added  to  the  league.  In  1388  the  people 
of  some  of  the  communes  of  upper  Valais,  exasperated  by  the 
murder  of  the  Bishop,  had  inflicted  a  crushing  defeat  on 
Count  Amadeus  VII  of  Savoy  and  the  nobility  allied  with 
him,  and  in  1403  the  Bishop  of  Sion  and  the  people  of  the 
Valais  entered  into  "Burg  und  Landrechf  with  Uri,  Unter- 
walden  and  Lucern.  Here  it  will  be  observed  that  the  Bishop 
and  the  people  were  opposed  to  the  nobles.  In  1403  Uri  and 
Obwalden  invaded  and  established  their  authority  in  Ticino 
as  a  subject  province.  In  141 2  the  peace  with  Austria  was 
renewed  for  a  further  period  of  fifty  years.  In  141 5  under 
instigation  of  the  emperor  Sigismund,  who  was  at  war  with 
Frederick  of  Austria,  the  members  of  the  league  attacked  the 
Aargau  and  besieged  the  stronghold  called  the  Stein.  While 
the  siege  was  being  pressed,  peace  was  concluded  between  the 
emperor  and  the  duke,  and  the  confederates  were  ordered  to 
withdraw,  but  they  reifused,  took  the  Stein  and  divided  the 
territory  among  the  members  of  the  confederacy.  Uri  how- 
ever took  no  share.  Disputes  having  arisen  between  Schwyz 
and  Zurich  over  the  estate  of  the  Count  of  Taggenburg, 
Zurich  formed  an  alliance  with  the  ancient  enemy,  Austria, 
and  the  confederates  declared  war.  In  a  battle  before  Zurich 
the  confederates  were  successful.  After  a  brief  time  an 
overwhelming  force  of  mercenaries,  called  the  Armagnacs, 
came  into  the  country  and  attacked  about  1,300  of  the  con- 
federates near  Basel  on  Aug.  21,  1444.  A  most  desperate 
fight  ensued,  in  which  the  latter  were  nearly  exterminated. 
The  effect  df  the  battle,  however,  was  to  check  the  advance 
of  the  victors.  In  1450  the  principle  of  arbitration  was  in- 
voked, and  the  Schultheiss  of  Bern  chosen  final  arbiter  be- 
tween the  contending  parties.  He  declared  the  allegiance 
between  Austria  and  Zurich  null  and  that  by  the  perpetual 
league  Zurich  was  still  bound  to  the  confederation.  On  the 
other  hand  Zurich  was  given  back  her  territory,  except  a 
small  portion  of  the  Taggenburg  estate. 

In  1474  the  confederation  was  drawn  into  a  war  with  the 
Duke  of  Burgundy,  in  which  it  defeated  him  in  two  great 
battles  and  took  a  great  quantity  of  spoils.     Differences  hav- 


SWITZERLAND  539 

ing  occurred  between  the  Forest  States  and  the  cities,  a  diet 
was  called  to  meet  at  Stans  in  Unterwalden  to  settle  matters. 
It  met  in  1481  and  after  stormy  scenes  finally  reaffirmed  the 
Covenant  of  Sempach  and  Pfaffenhrief  with  an  additional 
covenant  against  dangerous  assemblies  in  the  towns  leading 
to  tumults.  It  w^as  further  provided  that  the  covenants  should 
be  sworn  to  every  five  years.  In  1499  the  confederates  be- 
came involved  in  a  war  with  the  Emperor.  '  Alfter  a  brief 
struggle  the  matters  in  dispute  were  referred  to  arbitration, 
and  from  that  time  the  confederation  became  practically  in- 
dependent, though  not  formally  recognized  as  being  so.  In 
1500  Basel  and  Schaffhausen  were  received  into  the  confeder- 
ation as  the  eleventh  and  twelfth  members.  The  Swiss  had 
reached  the  stage  of  a  recognized  military  power,  and  Swiss 
mercenaries  were  eagerly  sought  by  European  potentates. 
The  confederation  also  entered  upon  a  struggle  with  the 
French  King  for  Italian  possessions,  which  resulted  in  their 
defeat  at  Morignano  in  151 5.  Following  this  war  Appen- 
zell  was  admitted  into  the  confederation  as  the  thirteenth 
state.  Though  the  confederation  had  waged  such  successful 
wars,  it  was  still  without  any  central  government.  All  con- 
cert of  action  was  attained  by  conferences  of  representatives 
of  the  different  states.  The  diets,  which  were  held  by  dele- 
gates, were  not  strictly  legislative  or  sovereign  bodies,  but 
rather  assemblies  of  ambassadors,  who  could  only  act  in  ac- 
cordance with  instructions.  Nevertheless  the  country  does 
not  seem  to  have  suffered  greatly  from  the  want  of  a  stronger 
government.  Common  needs  and  purposes  formed  a  stronger 
bond  of  union  than  any  accepted  system  would  under  other 
circumstances.  No  error  is  more  common  or  more  harmful 
than  that  the  acceptance  of  an  official  system  necessarily  adds 
greatly  to  the  welfare  of  the  people.  A  government  is  not 
firmly  established  until  the  people  generally  are  educated  to 
regard  it  as  having  rightful  authority  and  to  yield  obedience 
to  the  rules  and  principles  on  which  it  is  founded.  When  this 
condition  is  attained,  the  great  majority  of  the  people  observe 
and  obey  these  rules  and  principles  without  the  direct  appli- 
cation  of   the   power   olf   governing   agencies.      Comfpulsory 


540  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

measures  are  only  required  for  the  minority  who  refuse  com- 
pliance. The  bond  of  the  feudal  system  was  the  oath  of  the 
vassal  to  serve  his  lord  and  the  promise  of  the  lord  to  protect 
the  vassal.  When  the  relation  was  entered  into,  its  obligations 
were  distinctly  taught  and  assumed  as  a  personal  duty,  de- 
liberately accepted,  and  to  the  performance  of  which  the  vas- 
sal was  bound  by  his  oath.  In  the  absence  of  the  compact  or 
of  any  accepted  relation,  the  vassal  would  have  had  the  same 
natural  right  to  lead  and  command  as  the  lord,  and  in  a  com- 
pany of  freemen  would  as  often  be  chosen  by  his  fellows  to 
do  so. 

The  peculiarity  df  the  Swiss  confederation,  distinguishing 
it  from  most  if  not  all  other  confederations,  was  that  it  was 
an  EidgenossenscJtaft,  an  oath  bound  association,  in  which 
the  individuals  composing  the  democratic  states  entered  into 
a  written  compact,  agreeing  to  do  certain  things  for  mutual 
protection,  and  to  be  bound  by  certain  rules  which  were 
deemed  conducive  to  the  general  welfare,  and  took  an  oath 
that  they  would  perform  the  compact.  This  was  in  effect  an 
oath  of  mutual  support  in  defense  of  their  rights,  instead  of 
an  oath  of  fealty  to  an  overlord.  The  bond  which  thus  tied 
equals  to  each  other  proved  in  the  early  struggles  even  stronger 
than  the  feudal  bond.  It  was  superior  in  its  moral  principles. 
It  appealed  both  to  the  conscience  and  to  the  intelligence  of 
all  the  freemen,  and  the  voluntary  compliance  yielded  to  the 
compact  was  such  as  to  make  a  few  peasants  and  burghers  the 
superiors  in  war  of  the  feudal  lords  of  Austria,  and  even  of 
Burgundy,  France  and  the  empire.  It  is  also  worthy  of  notice 
that  the  leading  necessity  for  arbitrary  central  authority, 
vested  in  one  ruler,  is  to  raise,  equip  and  command  armies  in 
war.  The  need  of  a  single  head,  vested  with  power  to  decide 
and  act  promptly,  has  been  almost  universally  recognized,  yet 
the  superiority  of  the  free  confederates  over  the  feudal  lords 
and  their  retainers  was  demonstrated  over  and  over  on  many 
hard  fought  battle  fields.  There  is  much  similarity  between 
these  early  contests  and  those  of  the  Greeks  against  the 
Persians.  Perhaps  the  most  significant  fact  connected  with 
this  matter  is,  that  a  iforce  of  men  fighting  a  defensive  war, 


SWITZERLAND  54i 

which  each  man  regards  as  his  war,  and  when  he  has  been 
educated  to  regard  it  as  his  rehgious  duty  to  do  his  utmost  for 
himself  and  his  sworn  comrades,  is  superior  to  another  force 
of  equal  numbers  which  merely  dbeys  a  constituted  leader, 
and  that  education  in  and  voluntary  assumption  of  social 
duties  are  of  the  highest  value  in  the  organization  of  states. 

Among  the  most  noted  leaders  of  the  reformation  was 
Ulrich  Zwingli.  He  was  quite  as  much  a  political  as  a  reli- 
gious reformer,  and  he  preached  vigorously  against  the  sin  oi 
fighting  the  battles  of  despots  for  pay.  Zurich  accepted  his 
doctrines,  and  the  other  Swiss  cities  inclined  toward  the  re- 
formation. The  Forest  Cantons  remained  Catholic.  War 
between  the  opposing  factions  threatened  in  1529,  but  a  peace 
was  concluded  which  allowed  religious  (freedom  to  each  state, 
not  to  each  person.  In  1531  Zurich  having  cut  off  supplies  of 
food  from  the  Forest  States  and  suppressed  the  monastery  of 
St.  Gallen  and  appropriated  its  lands,  civil  war  broke  out  and 
Zurich  was  defeated.  A  second  peace  followed,  which  rec- 
ognized the  right,  not  only  of  states,  but  of  each  parish  or 
commune,  to  determine  its  form  of  worship.  The  League 
split  into  two  camps.  The  Catholics  held  Uri,  Schwyz,  Un- 
terwalden,  Lucern  and  Zug,  which  in  1529  as  the  ''Christliche 
Vereinigung"  had  entered  into  an  offensive  and  defensive 
alliance  with  the  King  of  Hungary,  and  Freiburg,  Solothurn, 
Inner  Rhoden,  Appenzell  and  St.  Gall,  which  gave  them  seven- 
teen out  of  a  total  of  twenty-nine  members  of  the  diet  as  then 
constituted.  The  reiformers  held  Zurich,  Bern,  Basel  Schaff- 
hausen,  Ausser  Rhoden  (Appenzell)  with  Graubunden. 
Thurgau  and  Glarus  were  divided.  Prior  to  the  reformation 
Geneva  was  a  republican  city,  over  which  the  count  of  Savoy 
and  the  BivShop  claimed  seigniority.  In  15 19,  at  the  instiga- 
tion of  the  republican  elements  in  the  city,  a  temporary  al- 
liance was  formed  with  Freiburg  and  Bern  and  another  in 
1526  for  twenty-five  years.  In  1536  by  the  aid  of  an  army 
from  Bern  Geneva  was  liberated  from  the  rule  of  the  Bishop 
and  Count  of  Savoy.  The  people  had  been  converted  to  the 
principles  of  the  reformation,  and  a  new  alliance  w^as  con- 
cluded.    Geneva  became  the  field  of  the  labors  of  William 


542  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Farel  and  John  Calvin,  and  under  their  leadership  adopted  a 
rigid  and  intolerant  system,  which  was  enforced  with  the 
burning  af  Michael  Servetus  at  the  stake  for  heresy  and  other 
cruelties.  Secret  spies  and  torture  were  called  to  the  aid  of 
those  who  professed  a  reformation  of  the  Church  of  Rome. 

In  October  1586  the  Golden  League  was  formed  by  the 
Catholic  states  of  Uri,  Schwyz,  Unterwalden,  Lucerne,  Zug, 
Freiburg  and  Solothurn  for  the  maintenance  of  the  true  faith 
in  their  territories  and  engaging  to  help  each  other,  if  at- 
tacked by  external  enemies,  notwithstanding  any  other  league 
new  or  old.  In  161 2  Zurich  and  Bern  entered  into  an  al- 
liance with  the  Margrave  of  Baden.  Though  religious  dis- 
sensions had  disrupted  the  Confederation,  unlike  their 
co-religionists  throughout  Germany,  the  opposing  factions 
did  not  join  in  the  Thirty  Years'  war,  but  maintained  an  atti- 
tude of  neutrality.  They  were  unable  to  escape  some  compli- 
cations with  Austria,  which  conquered  the  Prattigan,  and  the 
Spanish  and  French  in  the  Valtellaine. 

The  treaty  of  Westphalia,  concluded  in  1648,  terminated 
the  Thirty  Years'  war  and  recognized  the  independence  of  the 
Confederation  in  the  following  language,  ''Aforesaid  city  of 
Basel  and  the  remaining  Cantons  of  the  Helvetians  are  in 
possession  of  as  good  as  full  freedom  and  exemption  from 
the  empire  and  are  in  no  way  subject  to  the  Dikasterien  and 
courts  of  the  empire." 

The  hiring  of  mercenary  troops  to  foreign  princes,  the 
payment  of  pensions  to  the  states  for  the  privilege  o/f  hiring 
mercenaries,  the  rulership  of  the  Aargau,  Thurgau  and  other 
lands  taken  by  force  of  arms  and  ruled  as  dependencies  by  the 
cantons,  the  exercise  of  authority  by  representatives  of  the 
states,  by  bailiffs  and  captains,  tended  to  develop  the  aristo- 
cratic spirit,  not  only  in  the  cities,  but  in  the  Forest  Cantons 
as  well.  With  more  intercourse  and  closer  relations  with 
neighboring  states  and  with  the  growth  of  individual  for- 
tunes social  distinctions  and  oligarchical  tendencies  developed. 
The  democratic  cantons  exercised  over  their  dependencies  the 
rights  of  the  feudal  lords  whom  they  had  displaced,  and  with 
no  less  vigor.     In  1653  the  peasant's  war  broke  out  in  the 


SWITZERLAND  545 

Entlebuch,  a  valley  subject  to  Lucern,  and  spread  over  the 
whole  Confederacy.  Popular  assemblies  were  held  and  pro- 
tests made  against  the  tyrannies  of  the  local  governments. 
Armed  encounters  followed  between  the  peasants  and  the 
authorities,  resulting  in  the  defeat  olf  the  former  and  the 
barbarous  execution  of  Leuenberger  and  Schibi  their  prin- 
cipal leaders. 

In  1663  Louis  XIV  of  France  renewed  a  treaty,  first  made 
with  the  Confederation  in  1602,  and  thereby  obtained  their 
plege  to  supply  him  at  least  6,000  and  not  more  than  16,000 
men  annually  in  return  for  3,000  francs  to  each  canton  an- 
nually, regular  pay  for  the  mercenaries  and  certain  commercial 
privileges.  The  aristocratic  tendencies  were  most  marked  in 
the  cities  of  Bern,  Lucern,  Freiburg  and  Solothurn,  where 
there  were  no  guilds  sharing  in  the  government  as  at  Zurich, 
Basel  and  Schaffhausen.  They  were  promoted  there  as  every- 
where by  the  principle  of  the  inheritance  of  wealth  and  power. 
The  burghers,  who  administered  the  municipal  government, 
refused  to  admit  new  members  to  burgher  rights,  and  a  small 
class  secured  possession  of  all  the  offices  and  adopted  the 
principle  of  cooption,  by  which  they  supplied  all  vacancies  by 
appointment  and  without  any  consultation  with  the  body  of 
the  citizens.  In  Bern  olf  360  burgher  families  eighty  held  all 
the  offices. 

It  is  most  remarkable  that  Swiss  territory  should  have  be- 
come the  dwelling  place  of  so  many  of  the  great  men  of  the 
eighteenth  century,  Voltaire,  Rousseau,  Gibbon,  Madame  de 
Stael,  Lavater  and  Pestalozzi.  On  Swiss  soil  there  was  an 
awakening  to  the  falsity  of  the  claim  of  the  descendants  of 
robber  barons  to  rule  by  right  divine,  and  to  the  manifest 
right  of  all  men  to  liberty,  not  only  of  conscience,  but  of  con- 
duct. Switzerland,  though  not  the  field  of  the  great  struggle 
for  liberty  which  took  form  in  the  last  part  of  the  eighteenth 
century,  was  a  school  in  which  the  principles  governing  social' 
relations  were  3tudied  with  great  profit  and  pro/found  in- 
fluence on  all  western  Europe.  In  1759  there  was  formed  the 
Oekonomische  Gesellschaft  at  Bern,  said  to  have  been  the 
first  agricultural  society  in  Europe.     It  promoted  improved 


544  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

systems  of  agriculture.  In  1762  the  Helvetian  society,  with 
the  Baths  of  Schinznach  as  the  place  of  its  meetings,  was 
formed  for  the  study  and  discussion  of  social  problems  and 
to  promote  reforms  in  public  affairs. 

There  were  various  attempts  to  gain  relief  from  the  tyranny 
of  the  oligarchies,  which  had  developed  not  only  in  the  cities 
but  in  the  Forest  Cantons,  in  Appenzell  against  Landammann 
Zwellweger,  in  Zug  against  Zur  Lauben,  in  Schwyz  against 
the  family  of  Reding,  whose  wealth,  acquired  in  foreign 
service,  was  made  the  basis  df  claims  of  right  to  rule  at  home. 
In  Geneva  there  were  many  revolts  and  efforts  to  throw  off 
the  rule  of  the  oligarchy. 

In  Bern  the  democratic  leader  Henzi  and  two  companions 
were  executed,  as  was  Waser  in  Zurich.  The  lands,  wrested 
from  feudal  lords  by  the  Confederates  and  held  as  subject 
distri,cts,  revolted  against  the  oppression  of  their  rulers: 
Wilchingen,  in  Schafhausen,  Entlebuch,  the  Vaud,  the  Tog- 
genburg  and  Val  Levantina,  all  strove  for  relief,  but  without 
success.  Those  claiming  an  hereditary  right  to  take  the  pro- 
ceeds of  the  labors  of  others  without  compensation  main- 
tained their  claims  by  force  and  visited  barbarous  punishment 
on  those  who  asserted  their  natural  rights. 

In  1790  the  Helvetian  Club  at  Paris  was  formed  by  exiles 
from  Swiss  districts  and  issued  pamphlets  teaching  the  rights 
of  man,  which  they  succeeded  in  circulating  in  spite  of  the 
efforts  of  the  Cantonal  authorities  to  suppress  them.  Dis- 
turbances soon  followed.  In  1790  Lower  Wallis  rose  against 
the  upper  district.  In  1792  the  "Raurician"  republic  opposed 
the  prince  bishop  of  Basel  and  became  the  French  department 
of  Mont  Terrible.  Napoleon  sought  an  occasion  for  the  oc- 
cupation of  Swiss  Cantons,  and  when  exiles  from  Vaud  and 
Freiburg  called  in  the  directory  to  protect  the  liberties  which 
had  been  guaranteed  by  France,  an  excuse  was  found  and 
troops  were  sent  into  Mulhausen,  Bienne  and  the  territory  of 
the  Bishop  of  Basel  and  into  Vaud  where  the  "Lemanic  Re- 
public" was  proclaimed.  In  1798  a  large  French  army  en- 
tered the  country  and  took  Bern,  which  alone  offered  serious 
resistance  and  yielded  only  after  a  decisive  battle.     After  this 


SWITZERLAND  545 

all  the  other  states  yielded  to  French  dictation.  On  April  12, 
1798  a  new  constitution,  called  the  Helvetic,  was  promulgated 
by  authority  of  the  French  Directory,  which  declared  the 
body  of  all  the  citizens  sovereign,  established  a  representative 
government,  guaranteed  religious  liberty  and  (freedom  of  jthe 
press,  abolished  all  hereditary  titles  and  powers  and  all  feudal 
tenures  of  land.  Two  legislative  bodies  were  created,  a  Sen- 
ate of  four  delegates  from  each  canton  and  a  Grand  Council 
of  representatives  elected  by  the  people.  The  executive  power 
was  conferred  on  a  Directory  of  five  members,  to  be  chosen 
by  the  Senate  and  Council  jointly.  Four  ministers  at  the  head 
of  administrative  departments  were  provided  for.  A  supreme 
court,  consisting  of  one  judge  from  each  canton,  was  created. 
Each  canton  was  given  a  prefect,  a  board  of  administration 
and  a  local  court.  All  distinctions  between  the  cantons  and 
their  subject  districts  were  abolished,  and  the  people  of  all 
Switzerland  were  placed  on  an  equal  tfooting.  This  constitu- 
tion was  accepted  by  all  but  the  three  forest  cantons,  which 
resisted,  but  a  strong  French  army  after  severe  fighting  en- 
forced submission  and  on  July  14,  1798,  deputies  from  the 
eighteen  cantons  met  in  Aargau  and  took  the  oath  of  allegiance 
to  the  constitution.  Nidwalden  alone  refused  to  allow  its 
citizens  to  take  the  oath  and  made  a  desperate  resistance,  ex- 
hibiting the  ancient  Swiss  spirit,  but  was  overcome  by  superior 
numbers.  Much  new  legislation  was  passed  by  the  Senate 
and  Council.  There  was  an  abolition  of  all  the  vexatious 
trade  restrictions  between  the  cantons  with  which  they  were 
burdened,  and  free  trade  was  established  throughout  the  re- 
public. In  August  1799  an  offensive  and  defensive  alliance 
was  formed  with  France.  During  that  year  Switzerland  be- 
came a  battleground  for  the  contending  armies  of  France, 
Austria  and  Russia,  and  suffered  much  from  their  presence. 
The  Helvetic  constitution  did  not  prove  acceptable  to  the  peo- 
ple, and  divers  new  drafts  were  proposed  in  1801  and  1802. 
In  1802,  following  the  withdrawal  o/f  French  troops,  there 
were  uprisings  against  the  authorities,  and  in  the  ensuing 
conflicts  the  insurgents  were  generally  successful.  Napoleon 
put  an  end  to  the  strife  by  issuing  a  proclamation  inviting  the 


546  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Swiss  people  to  send  delegates  to  confer  with  him  concerning 
a  new  constitution.     On  this  call  about  sixty  delegates  went 
to  Paris,  and  on  Feb.  19,  1803,  a  new  constitution,  styled  the 
Act  of  Mediation,  was  signed  and  promulgated.     It  was  a 
compromise  between  the  old  confederation  and  the  Helvetic 
constitution.     It  reinstated  the  old  Diet  with  enlarged  powers, 
and  restored  the  sovereignty   of   the  cantons.      Six  cantons 
were  selected,  namely  Freiburg,  Bern,  Solothurn,  Basel,  Zu- 
rich and  Lucern  in  which  the  diet  was  to  be  held  in  annual 
rotation,  the  Schultheiss  or  Burgermeister  of  each  capital  be- 
coming in  turn  President  of  the  confederation  with  the  title 
of  Landamann  of  Switzerland.     Each  canton  sent  one  dele- 
gate to  the  Diet,  but  cantons  having  more  than  100,000  in- 
habitants  had  two   votes.     The  cantons   separately   had   all 
powers  not  delegated  to  the  Federal  authorities.     The  Lands 
gemeinde  in  the  democratic  cantons  were  restored,   and  in 
the  other  cantons  the  government  was  put  in  the  hands  of 
the  great  council  as  the  legislative  body  and  the  small  council 
as  the  executive,   and   a  property  qualification  required   for 
voters  and  officials.     No  canton  was  allowed  to  form  a  sepa- 
rate political  alliance.     Full  liberty  was  given  all  citizens  to 
settle  in  any  canton  and  no  privileged  class,  except  as  stated, 
or  subject  lands  were  allowed.     With  the  downlfall  of  Na- 
poleon   Switzerland,    in   common   with   the   rest   of    Europe, 
exhibited  reactionary  tendencies.     On  Dec.  22,   181 3,   Bern 
declared  the  Act  of  Mediation  void  and  reinstated  the  sur- 
viving members  of  the  old  council,  who  had  served  before 
the  revolution.    A  week  later  the  Diet  also  denounced  the  Act 
and  the  work  of  forming  a  new  constitution  was  undertaken,, 
but  was  not  completed  till  181 5,  under  the  supervision  of  the 
great  powers,  which,   at  the  Congress  of  Vienna  on   Nov. 
20,   181 5,  guaranteed   Switzerland  independence  and  the  in- 
violability of  her  territory.     On  Aug.  7,  181 5,  the  twenty-two 
states  comprising  the  confederation  signed  the  new  Bundes- 
vertrag.     Valais,  Geneva  and  Neuchatel  were  now  admitted 
as  states  on  an  equal,  footing.     The  new  pact  regulated  the 
contributions  of  men  and  money  to  the  Confederation,  and 
provided  a  Federal  Board  of  Arbitration  to  settle  internal  dis- 


SWITZERLAND  547 

putes.  The  Diet  was  made  of  delegates  limited  to  one  vote 
for  each  canton.  Bern,  Zurich  and  Lucern  were  made  capital 
cities  in  rotation.  The  office  of  Landamann  was  abolished 
and  no  central  authority  was  created  to  enforce  the  decrees  of 
the  Diet.  Church  and  monastic  establishments  were  guar- 
anteed protection.  Following  the  adoption  of  this  scheme  of 
loose  confederation  the  cantons  returned  to  much  of  their 
ancient  system.  Censorship  of  the  press  and  the  mercenary 
system  are  among  the  worst  of  the  results  of  the  reaction. 

The  spirit  which  brought  about  the  French  Revolution  of 
1830  was  also  at  work  in  Switzerland,  and  meetings  were  held 
in  many  of  the  cantons,  demanding  reforms  and  increased 
respect  for  popular  rights.  In  that  year  nine  of  the  cantons 
revised  their  constitutions  in  response  to  these  demands.  Dur- 
ing the  following  year  there  were  conflicts  in  Basel,  Schwyz 
and  Neuchatel,  resulting  in  the  first  named  in  a  division  into 
two  half  cantons.  Attempts  to  revise  the  federal  constitution 
failed.  On  March  17,  1832,  Luzern,  Zurich,  Solothurn,  St. 
Gallen,  Aargau  and  Thurgau  joined  in  what  was  styled  the 
Siebenerkonkordat,  guaranteeing  the  maintenance  of  the  con- 
stitutions of  the  members.  On  November  14  the  following 
conservative  cantons  Uri,  Schwyz,  Unterwalden,  Baselstadt, 
Neuchatel  and  Valais,  withdrew  from  the  diet  and  united  in 
a  league ;  thus  dividing  the  Confederation  into  hostile  sections. 
From  this  time  on  dissensions  between  the  reformers  and 
conservatives,  the  Catholics  and  the  Protestants,  continued, 
the  cantons  arranging  themselves  in  opposing  factions  ac- 
cording to  the  prevailing  sentiment  in  each.  In  1843  Luzern, 
Uri,  Schwyz,  Unterwalden,  Zug,  Freiburg  and  Valais,  Catho- 
lic states,  formed  the  Sonderhimd  and  in  December  1845 
signed  an  Act  of  Secession,  appointed  a  council  of  war,  and 
pledged  each  other  mutual  support  in  case  of  attack.  War 
did  not  result  till  the  fall  oif  1847  and  was  then  short  and 
conducted  with  a  most  commendable  effort  to  reduce  the 
brutalities  of  war  to  a  minimum.  Dufour,  the  commander  of 
the  federal  forces,  was  both  a  humane  rnan  and  an  able,  ener- 
getic general.  A  campaign  of  twenty  days  settled  the  issue  in 
favor  of  the  Federal  side.     On  November  30,  after  the  war 


548  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  over,  the  French  ambassador  presented  a  collective  note 
of  the  great  powers,  offering  mediation  between  the  contend- 
ing factions,  but  the  offer  was  rejected  on  the  ground  that  the 
issue  had  already  been  decided.  In  1848  a  constitution  was 
adopted.  Under  it  a  man  settling  in  a  canton  other  than 
that  of  his  birth  acquired  citizenship  after  two  years,  but  was 
excluded  from  communal  rights.  A  Federal  legislature  was 
established,  made  up  o)f  two  houses,  the  Stande  Rath,  com- 
posed of  two  deputies  from  each  canton,  and  the  national 
council,  elected  for  terms  of  three  years,  one  for  every  20,000 
population  or  major  fraction.  The  Bundesrath  of  seven  mem- 
bers elected  by  the  assembly,  was  the  executive  head,  and 
their  chairman  was  styled  President  of  the  confederation. 
The  Bundesgericht  of  eleven  members  was  the  supreme  court. 
All  enlistments  of  mercenaries  in  foreign  service  were  forbid- 
den by  vote  of  the  assembly. 

On  Jan.  31,  1874,  a  revised  constitution  was  adopted  by  the 
two  houses  and  on  May  29  was  ratified  by  vote  of  the  people. 
It  is  unique  in  so  many  of  its  provisions  that  it  is  well  worth 
careful  study.  The  first  seventy  articles  define  the  purposes 
of  the  Confederation,  the  relation  of  the  cantons  to  it  and 
to  each  other,  and  many  other  matters  difficult  to  summarize. 

"Article  i.  The  peoples  of  the  twenty  sovereign  cantons  of 
Switzerland  united  by  this  present  alliance  namely"  (names) 
form  in  their  entirety  the  Swiss  Confederation. 

"Art.  2.  The  purpose  of  the  Confederation  is  to  secure  the 
independence  of  the  country  against  foreign  nations,  to  main- 
tain peace  and  order  within,  to  protect  the  liberty  and  the 
rights  of  the  confederates  and  to  foster  their  common 
welfare." 

"Art.  3.  The  Cantons  are  sovereign,  so  far  as  their  sov- 
ereignty is  not  limited  by  the  Federal  Constitution,  and  as 
such  they  exercise  all  the  rights  which  are  not  delegated  to 
the  federal  government." 

"Art.  4.  All  Swiss  are  equal  before  the  law.  In  Switzer- 
land there  are  neither  political  dependencies  nor  privileges  of 
place,  birth,  persons  or  families." 

Art.   5.     Guarantees    to    the    cantons    and    their    citizens: 


SWITZERLAND  549 

their  territory,  liberty  and  constitutional  rights.  Article  6 
requires  the  cantons  to  ask  the  Confederation  to  guarantee 
their  constitutions,  to  be  accorded  on  condition  that  they  are 
not  repugnant  to  the  Federal  Constitution  and  have  been 
ratified  by  the  people.  Article  7  prohibits  the  cantons  from 
forming  separate  alliances,  though  conventions  with  regard 
to  legislative,  administrative  and  judicial  subjects  are  allowed 
subject  to  approval  of  the  Federal  authorities. 

''Art.  8.  The  Confederation  has  the  sole  right  of  declar- 
ing war,  of  making  peace  and  of  concluding  alliances  and 
treaties  with  foreign  powers,  particularly  treaties  relating  to 
tariffs  and  commerce." 

Art.  9.  Preserves  the  rights  of  the  cantons  to  make 
treaties  respecting  public  property  and  border  police  inter- 
course, not  conflicting  with  the  rights  of  the  confederation  or 
other  cantons.  Article  10  relates  to  intercourse  with  foreign 
governments.  "Art.  11.  No  military  capitulations  shall  be 
made." 

Art  12.  Prohibits  officials  from  receiving  pay,  gifts  or 
titles  from  foreign  governments. 

''Art.  13.  The  Confederation  has  no  right  to  keep  up  a 
standing  army.  No  Canton  or  half  Canton  shall,  without  the 
permission  of  the  Federal  government,  keep  up  a  standing 
force  of  more  than  three  hundred  men;  the  mounted  fK)lice 
not  included  in  this  number." 

"Art.  14.  In  case  of  differences  arising  between  Cantons 
the  States  shall  abstain  from  violence  and  from  arming  them- 
selves; they  shall  submit  to  the  decision  to  be  taken  upon 
such  differences  by  the  Confederation." 

Arts.  15,  16  and  17  provide  for  mutual  aid  in  case  of 
foreign  attack  or  internal  disturbance. 

Article  18  binds  every  Swiss  to  perform  military  service 
and  Arts.  19-20-21  and  22  provide  for  the  organization  of 
the  army  under  the  general  control  of  the  Confederation,  but 
entrusting  certain  duties  to  the  cantonal  officials. 

Art.  23  authorizes  the  Confederation  to  construct  public 
works  which  concern  Switzerland  or  a  considerable  part  of 
it.     Art.  24  gives  the  Confederation  superintendence  of  dikes 


550  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  forests  in  the  upper  mountain  region.  Art.  25  gives  like 
power  to  protect  game. 

''Art.  26.  Legislation  upon  the  construction  and  operation 
of  railroads  is  in  the  province  of  the  Confederation." 

"Art.  27.  The  confederation  has  the  right  to  establish 
besides  the  existing  Polytechnic  School  a  Federal  University 
and  other  institutions  of  higher  instruction,  or  to  subsidize 
institutions  of  such  nature.  The  Cantons  provide  for  primary 
instruction  which  shall  be  sufficient,  and  shall  be  placed  ex- 
clusively under  the  direction  of  the  secular  authority.  It  is 
compulsory  and  in  the  public  schools  free.  The  public  schools 
shall  be  such  that  they  may  be  frequented  by  the  adherents 
of  all  religious  sects  without  any  offense  to  their  conscience 
or  belief.  The  Confederation  shall  take  the  necessary  mea- 
sures against  such  Cantons  as  shall  not  fulfill  their  duties." 

''Art.  28.  The  customs  are  in  the  province  of  the  Con- 
federation. It  may  levy  export  and  import  duties."  Article 
29  requires  import  duties  to  be  low  as  possible.  Art.  30  gives 
the  proceeds  of  customs  to  the  Confederation,  out  of  which 
-certain  cantons  are  given  allowances  for  Alpine  roads. 

Art.  31  guarantees  free  trade  throughout  the  Confedera- 
tion, except  as  to  articles  subjected  to  state  police  supervision 
^-and  the  salt  and  gunpowder  monopoly.  Art.  32  gives  the 
cantons  power  to  collect  duties  on  wine  and  spirits  under 
certain  restrictions.  Art.  32,  amended  in  1885,  authorizes 
the  Confederation  to  regulate  the  manufacture  and  sale  of 
alcohol.  Art.  33  permits  the  cantons  to  regulate  the  granting 
of  certificates  to  practice  a  liberal  profession. 

"Art.  34.  The  Confederation  has  power  to  enact  uniform 
provisions  as  to  the  labor  of  children  in  factories,  and  as  to 
the  duration  of  labor  fixed  for  adults  therein,  and  as  to  the 
protection  of  workingmen  against  the  operation  of  unhealthy 
and  dangerous  manufactures.  The  transactions  of  emigra- 
tion and  guarantees  inviolable  secrecy  of  letters  and  telegrams, 
by  the  State,  are  subject  to  Federal  supervision  and 
legislation." 

"Art.  34  bis.  (Amendment  of  Oct  26,  i8go).  The  Con- 
federation will  by  law  establish  invalid  and  accident  insurance. 


SWITZERLAND  55i 

having-  regard  for  existing  invalid  funds.  It  may  declare 
participation  obligatory  for  all  or  for  special  classes  of  the 
population."   Art  35  Forbids  gaming  houses. 

Art.  36  places  posts  and  telegraphs  under  the  Confedera- 
tion and  guarantees  inviolable  secrecy  of  letters  and  telegrams. 
Art.  37  gives  the  Confederation  general  supervision  over 
roads  and  bridges  and  Art.  38  gives  it  exclusive  control  of 
coinage. 

"Art.  39.  The  Confederation  has  the  power  to  make  by 
law  general  provisions  for  the  issue  and  redemption  of  bank 
notes,  but  it  shall  not  create  any  monopoly  for  the  issue  of 
banknotes,  nor  make  such  notes  a  legal  tender." 

Art.  40.  The  Confederation  fixes  and  the  cantons  enforce 
the  standard  of  weights  and  measures.  Art.  41  makes  manu- 
facture and  sale  of  gunpowder  a  state  monopoly.  Art.  42 
states  the  sources  of  revenue  of  the  Confederation. 

"Art.  43.  Every  citizen  of  a  canton  is  a  Swiss  citizen." 
A  Swiss  settled  in  a  canton  other  than  that  of  his  birth  enjoys 
full  political  rights,  but  does  not  share  in  the  municipal  and 
corporate  property,  unless  by  act  of  the  canton. 

"Art.  44.  No  Canton  shall  expel  from  its  territory  one 
of  its  own  citizens,  nor  deprive  him  of  rights,  whether  ac- 
quired by  birth  or  settlement."  Naturalization  is  regulated 
by  federal  legislation.  Art.  45  gives  every  Swiss  citizen, 
except  criminals  and  paupers,  right  to  settle  anywhere  in 
Swiss  territory  on  a  certificate  of  origin.  Arts.  46  and  47 
subject  residents  to  the  jurisdiction  of  the  place  of  domicil 
and  provide  for  federal  legislation  as  to  temporary  settle- 
ments and  to  prevent  double  taxation. 

"Art.  48.  A  federal  law  shall  provide  for  the  regulation 
of  the  expenses  of  the  illness  and  burial  of  indigent  persons 
amenable  to  any  Canton,  who  have  fallen  ill  or  died  in  an- 
other Canton." 

"Art.  49.  Freedom  of  conscience  and  belief  is  inviolable." 
No  person  can  be  compelled  to  take  part  in  religious  services 
or  pay  taxes  to  a  religious  body  to  which  he  does  not  belong. 
Art.  50  gives  the  public  authorities  supervision  of  religious 
bodies  with  power  to  determine  their  controversies.     Art.  51 


552  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

excludes  the  order  of  Jesuits  from  Switzerland  and  authorizes 
the  exclusion  of  any  other  dangerous  order. 

"Art.  52.  The  foundation  of  new  convents  or  religious 
orders,  and  the  reestablishment  of  those  which  have  been 
suppressed  are  forbidden." 

Art.  53  makes  civil  status  and  records  thereof  and  control 
of  places  of  burial  subject  to  civil  authority. 

Art.  54  secures  freedom  in  contracting  marriage  and  gives 
the  wife  the  citizenship  of  her  husband. 

Art.  55  guarantees  freedom  of  the  press,  but  allows  the 
suppression  of  abuses  by  the  cantons. 

Art.  56  allows  freedom  in  forming  associations  except  for 
unlawful  purpose. 

''Art.  57.     The  right  of  petition  is  guaranteed." 

''Art  58.  No  person  shall  be  deprived  of  his  constitu- 
tional judge.  Therefore  no  extraordinary  tribunal  shall  be 
established.     Ecclesiastical  jurisdiction  is  abolished." 

Art.  59.  Suits  for  personal  claims  must  be  brought  in  the 
domicile  of  a  resident  solvent  debtor. 

"Imprisonment  for  debt  is  abolished." 

"Art.  60.  All  the  Cantons  are  bound  to  treat  the  citizens 
of  the  other  confederated  states  like  those  of  their  own  state 
in  legislation  and  in  all  judicial  proceedings." 

"Art.  61.  Civil  judgments  definitely  pronounced  in  any 
Canton  may  be  executed  anywhere  in  Switzerland." 

Arts.  62  and  63  abolish  exit  duties  on  property. 

Art.  64.  The  Confederation  has  power  to  make  laws  on 
legal  competency,  commerce,  copyright  inventions  and  bank- 
ruptcy. 

"The  administration  of  justice  remains  with  the  Cantons, 
save  as  affected  by  the  powers  of  the  Federal  Court." 

"Art.  65.  No  death  penalty  shall  be  pronounced  for  a 
political  crime." 

"Art.  66.  The  Confederation  by  law  fixes  the  limits  within 
which  a  Swiss  citizen  may  be  deprived  of  his  political  rights." 

Art.  67  gives  the  Confederation  power  to  regulate  extra- 
dition from  one  canton  to  another. 

"Art.  68.     Measures   are   taken   by   Federal   law    for  the 


SWITZERLAND  553 

incorporation  of  persons  without  country  and  for  the  pre- 
vention of  new  cases  of  that  nature." 

''Art.  69.  Legislation  concerning-  measures  of  sanitary 
poHce  against  epidemic  cattle  disease,  causing  a  common  dan- 
ger, is  included  in  the  powers  of  the  Confederation." 

''Art.  70.  The  Confederation  has  power  to  expel  from  its 
territory  foreigners  who  endanger  the  internal  or  external 
safety  of  Switzerland." 

"Art.  71.  With  the  reservation  of  the  rights  of  the  people 
and  the  Cantons,  the  supreme  authority  of  the  Confederation 
is  exercised  by  the  Federal  Assembly  which  consists  of  two 
sections  or  councils  to-wit : 

A.  The  National  Council. 

B.  The  Council  of  States." 

Arts.  72  to  79  provide  that  the  National  Council  shall  be 
composed  of  one  representative  for  each  20,000  persons  or 
major  fraction  and  gives  at  least  one  to  each  canton  and  half 
canton  of  a  divided  one.  All  Swiss  twenty  years  of  age  may 
vote  and  are  eligible  to  election.  The  term  is  three  years. 
The  Council  chooses  from  its  members  a  President  and  Vice- 
President  for  each  session. 

Arts.  80  to  83  relate  to  the  Council  of  States  which  con- 
sists of  two  representatives  from  each  canton,  and  chooses 
its  President  and  Vice-President  for  each  session. 

Arts.  84  to  94,  give  the  Federal  Assembly  legislative  power 
over  the  matters  within  the  control  of  the  Confederation.  A 
majority  of  each  Council  is  a  quorum  and  a  majority  of  those 
voting  is  required. 

"Art.  89.  Federal  laws,  enactments,  and  resolutions  shall 
be  passed  only  by  the-  agreement  of  the  two  Councils. 

"Federal  laws  shall  be  submitted  for  acceptance  or  rejection 
by  the  people,  if  the  demand  is  made  by  30,000  voters  or  by 
eight  Cantons.  The  same  principle  applies  to  federal  reso- 
lutions which  have  a  general  application,  and  which  are  not 
of  an  urgent  nature." 

Articles  90  to  94  relate  to  elections,  voting  of  members  of 
the  Council  and  the  introduction  of  measures  and  sittings  of 
the  Council. 


554  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

"Art.  95.  The  supreme  direction  and  executive  authority 
of  the  Confederation  is  exercised  by  a  Federal  Council,  com- 
posed of  seven  members." 

Articles  96  to  104  provide  that  members  of  the  Federal 
Council  are  chosen  by  the  Councils  in  joint  session  for  a  term 
of  three  years,  and  they  also  choose  from  the  Council  a  Presi- 
dent and  Vice-President  for  one  year.  Members  are  dis- 
qualified from  holding  any  other  office  or  following  any  other 
pursuit.  President  and  Vice-President  cannot  hold  two  years 
in  succession.  Four  members  of  the  Council  make  a  quorum. 
Members  have  the  right  to  speak  but  not  to  vote  in  either 
house. 

"Art.  105.  A  Federal  Chancery,  at  the  head  of  which  is 
placed  the  Chancellor  of  the  Confederation,  conducts  the 
secretary's  business  for  the  Federal  Assembly  and  the  Fed- 
eral Council."  The  Chancellor  is  chosen  by  the  Assembly  for 
three  years. 

"Art.  106.  There  shall  be  a  Federal  Court  for  the  ad- 
ministration of  justice  in  federal  concerns. 

"There  shall  be,  moreover,  a  jury  for  criminal  cases." 

"Art.  107.  The  members  and  alternates  of  the  Federal 
Court  shall  be  chosen  by  the  Federal  Assembly,  which  shall 
take  care  that  all  three  national  languages  are  represented 
therein. 

"A  law  shall  establish  the  organization  of  the  Federal  Court 
and  of  its  sections,  the  number  of  judges  and  alternates, 
their  term  of  office  and  their  salary." 

Arts.  108  to  114  relate  to  the  organization,  powers  and 
jurisdiction  of  the  court,  which  extends  to  all  cases  in  which 
the  Confederation  is  a  party,  between  cantons  and  between 
cantons  and  persons  or  corporations,  involving  the  status  of 
persons,  and  important  cases  which  the  parties  agree  to  submit 
to  it,  and  of  poHtical  crimes  and  against  officials  acting  under 
federal  authority  and  over  questions  of  conflicting  jurisdic- 
tion and  constitutional  law. 

"Art.  118.  The  Federal  Constitution  may  at  any  time  be 
wholly  or  partially  amended." 

"Art.  119.  Complete  Amendment  is  secured  through  the 
forms  required  for  passing  federal  laws." 


SWITZERLAND  555 

''Art  1 20.  When  either  Council  of  the  Federal  Assembly 
passes  a  resolution  for  the  complete  amendment  of  the  Federal 
Constitution  and  the  other  Council  does  not  agree;  or  when 
fifty  thousand  Swiss  voters  demand  the  complete  amendment, 
the  question  whether  the  Federal  Constitution  ought  to  be 
amended  is,  in  either  case,  submitted  to  a  vote  of  the  Swiss 
people,  voting  yes  or  no." 

Art.   121.     (Amendment  of  July  y,  i8pi). 

"Partial  amendment  may  take  place  through  the  forms  of 
Popular  Initiative,  or  of  those  required  for  passing  federal 
laws. 

'The  Popular  Initiative  may  be  used  when  fifty  thousand 
Swiss  voters  present  a  petition  for  the  enactment,  the  aboli- 
tion or  the  alteration  of  certain  articles  of  the  Federal  Con- 
stitution. 

''When  several  different  subjects  are  proposed  for 
amendment  or  for  enactment  in  the  Federal  Constitution  by 
means  of  the  Popular  Initiative,  each  must  form  the  subject 
of  a  special  petition. 

"Petitions  may  be  presented  in  the  form  of  general  sugges- 
tions or  of  finished  bills.  When  a  petition  is  presented  in  the 
form  of  a  general  suggestion,  and  the  Federal  Assembly 
agrees  thereto,  it  is  the  duty  of  that  body  to  elaborate  a  partial 
amendment  in  the  sense  of  the  Initiators,  and  to  refer  it  to 
the  people  and  the  Cantons  for  acceptance  or  rejection.  If 
the  Federal  Assembly  does  not  agree  to  the  petition,  then  the 
question  of  whether  there  shall  be  a  partial  amendment  at  all 
must  be  submitted  to  the  vote  of  the  people,  and  if  the  ma- 
jority of  Swiss  voters  express  themselves  in  the  affirmative, 
the  amendment  must  be  taken  in  hand  by  the  Federal  As- 
sembly in  the  sense  of  the  people. 

"When  a  petition  is  presented  in  the  form  of  a  finished  bill, 
and  the  Federal  Assembly  agrees  thereto,  the  bill  must  be  re- 
ferred to  the  people  and  the  Cantons  for  acceptance  or  re- 
jection. In  case  the  Federal  Assembly  does  not  agree,  that 
body  can  elaborate  a  bill  of  its  own,  or  move  to  reject  the 
petition,  and  submit  its  own  bill  or  motion  or  rejection 
to  the  vote  of  the  people  and  the  Cantons  along  with  the 
petition." 


556  EVOLUTION  OF  GOVERNMENTS  AND  Lu\WS 

"Art.  122.  A  Federal  law  shall  determine  more  precisely 
the  manner  of  procedure  in  popular  petitions  and  in  voting 
for  amendments  to  the  Constitution." 

''Art.  123.  The  amended  Federal  Constitution,  or  the 
amended  part  thereof,  shall  be  in  force  when  it  has  been 
adopted  by  the  majority  of  Swiss  citizens  who  take  part  in 
the  vote  thereon  and  by  a  majority  of  the  States. 

''In  making  up  a  majority  of  the  States  the  vote  of  a  Half- 
Canton  is  counted  as  half  a  vote. 

"The  result  of  the  popular  vote  in  each  Canton  is  con- 
sidered to  be  the  vote  of  the  State." 

In  several  particulars  the  development  of  the  governmental 
system  of  Switzerland  is  unique.  From  the  first  advent  of  its 
Teutonic  population  there  has  been  a  settled  distrust  of  ar- 
bitrary power  and  a  disinclination  on  the  part  of  the  demo- 
cratic communities  to  submit,  for  any  purpose,  to  the  dicta- 
tion of  a  central  authority.  The  cantons  have  manifested 
a  willingness  to  combine  for  defense  against  Austrian  and 
other  rulers,  who  sought  to  impose  their  authority,  but  after 
success  have  preferred  to  retain  freedom  from  any  superior 
authority.  The  first  real  union  under  a  central  authority 
was  forced  on  them  by  France,  but  since  then  the  remodelled 
government  is  the  product  of  Swiss  genius.  They  have  had 
to  deal  with  people  differing  in  language,  ancestry  and  cus- 
toms, separated  by  natural  barriers  and  dwelling  under  a  great 
variety  of  conditions.  They  have  had  democratic  agricul- 
tural cantons  and  oligarchical  cities,  monastic  establishments 
and  Calvinists,  cantons  claiming  proprietary  rights  over  other 
districts,  and  a  vast  complication  of  petty  trade  restrictions 
and  vexatious  regulations  imposed  by  each  district  for  local 
advantage,  to  contend  with.  The  inherent  difficulties  of  es- 
tablishing a  system  just  and  satisfactory  to  the  German, 
French  and  Italian  elements,  to  urban  and  rural  communities, 
have  not  been  less  than  those  presented  to  statesmen  elsewhere. 
They  have  also  been  subjected  to  external  influences,  which, 
to  a  weaker  race,  would  have  been  irresistible,  but  which  they 
with  a  moral  and  physical  courage  never  excelled  by  any 
people  have  successfully  overcome.  Against  the  intrigues  of 
the  great  powers  they  have   presented   a   superior  code   of 


SWITZERLAND  557 

morals  and  superior  devotion  to  the  true  interests  of  their 
•country. 

The  initiative  and  referendum,  by  which  the  people  retain 
in  their  ov^n  hands  at  all  times  power  to  veto  the  acts  of  their 
representatives,  to  compel  action  by  them  on  matters  they 
will  not  undertake,  and  to  amend  even  the  fundamental  law 
whenever  they  see  fit,  is  a  natural  outgrowth  of  the  heredi- 
tary distrust  of  delegated  power.  The  Swiss  system  is  clearly 
the  most  democratic,  and  gives  the  most  unrestricted  play  to 
the  law  of  social  growth  and  progress  of  any  ever  devised. 
At  the  same  time  the  process  which  is  marked  out  for  legisla- 
tion insures  full  consideration  of  the  question  acted  on,  and 
guards  against  the  dangers  of  popular  passions  perhaps  as 
well  as  any  known  system.  These  dangers  are  usually  greatly 
magnified.  Unjust  systems,  by  which  a  few  profit  and  many 
suffer,  are  always  built  behind  the  protection  of  the  govern- 
mental system.  There  is  little  occasion  for  fearing  that  such 
systems  will  be  established  as  a  result  of  a  popular  vote,  but, 
whenever  clearly  pointed  out,  an  existing  one  is  likely  to  be 
more  quickly  gotten  rid  of  by  the  direct  action  of  the  people 
than  in  any  other  manner.  It  is  almost  axiomatic  that  the 
deliberate  judgment  of  the  whole  people,  on  any  matter  of 
general  interest,  is  more  likely  to  be  right  than  that  of  a 
less  number,  entrusted  with  powers  and  privileges  distin- 
guishing them  from  the  multitude  and  viewing  the  matter 
from  the  standpoint  of  a  favored  class. 

In  practice  the  referendum  has  operated  mainly  as  a  check 
on  the  action  of  the  Federal  Assembly,  a  few  of  the  laws 
passed  by  it  having  been  rejected  by  the  people,  while  more 
than  five  to  one  of  the  enactments  of  the  assembly  have  been 
allowed  to  take  effect  without  any  call  for  submission  to  a 
popular  vote.  The  existence  of  the  power  in  the  hands  of  the 
people  to  reject  an  enactment  must  act  as  a  wholesome  check 
on  the  legislature,  and  the  initiative  tends  to  stimulate  action 
demanded  by  the  people. 

Another  marked  superiority  of  the  Swiss  system  over  that 
of  other  European  states  is  the  absence  of  a  standing  army, 
the  greatest  curse  which  the  governments  of  modern  Europe 
impose  on  their  people.     Switzerland  follows  a  settled  policy 


558  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  neutrality  in  all  the  wars  of  other  nations,  and  recognizes 
the  principle  of  arbitration  as  of  the  same  value  and  fulfilling 
the  same  mission  of  peace  in  the  settlement  of  disputes  be- 
tween nations  that  the  courts  perform  with  reference  to  the 
contentions  of  individuals  and  bodies  of  citizens  within  the 
state.  The  ambition  of  military  leaders,  inherited  feelings  of 
hostility  between  nations,  and  ignorance  of  the  blessings 
which  may  be  derived  from  friendly  intercourse,  still  pro- 
duce that  most  lamentable  spectacle  of  great  nations  profess- 
ing civilization  and  Christianity,  groaning  under  the  weight 
of  crushing  military  establishments,  each  of  which  becomes 
the  main  reason  and  excuse  for  the  maintenance  of  the  other. 
Bern,  the  Swiss  capital,  has  also  become  the  seat  of  the 
most  advanced  governmental  combination  ever  yet  effected, 
the  international  Postal  Union,  a  governmental  combination, 
the  sole  purpose  of  which  is  to  facilitate  intercommunication 
between  the  people  of  all  the  nations  of  the  earth.  It  dis- 
charges one  of  the  highest  and  best  functions  of  government, 
a  useful  service  through  the  friendly  cooperation  of  all  na- 
tions in  a  surprisingly  economical  manner.  Perhaps  Swiss 
statesmen  are  not  entitled  to  especial  credit  for  the  success  of 
the  Union,  but  the  peaceful  principles  on  which  the  state  acts 
render  it  the  natural  home  of  such  a  Union.  Switzerland, 
after  enduring  the  evils  of  the  lordship  of  one  canton  over 
the  people  of  another  under  a  claim  of  property  rights,  now 
has  no  subject  territory.  Wherever  Swiss  sovereignty 
reaches  are  Swiss  citizens  with  equal  political  rights.  The 
constitution  shows  evidences  of  a  desire  to  reach  better  ad- 
justment of  compensation  for  labor,  to  better  the  situation 
of  those  who  have  less  than  a  fair  share  of  the  fruits  of  in- 
dustry, but  it  cannot  be  said  that  any  principle  of  property 
rights  in  marked  advance  of  those  recognized  in  other  coun- 
tries has  been  accepted. 

Authorities 
McCracken:     Rise  of  the  Swiss  Republic. 
Colton  :     Annals  of  Switzerland. 
Stead  and  Hug:     Switzerland. 
Foreign  Constitution. 
Encyclopaedia  Britannica. 


CHAPTER  XXIII 


France 


No  country  presents  a  more  instructive  history  in  the  Hne 
of  our  study  than  France.  We  here  have  a  chance  to  observe 
the  development  and  reconstruction  of  their  institutions  by 
a  people  substantially  homogeneous,  who  have  dwelt  in  the 
same  state  for  more  than  two  thousand  years.  The  French- 
men of  today  are  the  lineal  descendants  of  the  Gauls,  Belgians 
and  Iberians  of  the  days  of  Caesar,  with  some  admixture,  it  is 
true,  of  Roman  and  German  blood,  and  some  commingling  of 
Northmen.  The  record  of  events  from  the  time  of  the  Roman 
invasion  is  perhaps  more  full  and  complete  than  that  of  any 
other  country.  Nowhere  else  can  be  found  wider  extremes  or 
greater  variety  of  political  institutions  and  theories  of  gov- 
ernment. All  stages  of  social  organization  from  that  of  the 
small  semi-savage  tribe  to  the  vast  empire,  and  from  the  abso- 
lute despotism  to  the  commune,  have  been  exhibited.  Abject 
slavery  has  been  followed  by  the  theory  at  least  of  liberty, 
fraternity  and  equality.  Since  Rome  fell,  no  other  European 
country  has  exercised  so  profound  an  influence  on  the  insti- 
tutions of  other  states. 

The  earliest  inhabitants  of  whom  we  have  any  accounts 
include  Iberians,  presumed  to  have  been  the  earliest  comers, 
the  Gauls  and  their  kinsmen  the  Belgians.  The  descendants 
of  the  Iberians  still  dwell  on  the  slopes  of  the  Pyrenees  and 
are  called  Basques.  They  were  short  of  stature,  of  dark  com- 
plexion, resolute  and  tenacious  in  the  defense  of  their  homes, 
but  without  capacity  for  organization  on  a  large  scale.  The 
Gauls  of  early  days,  like  the  French  people  of  today,  were 
bright,  vivacious,  brave  and  intelligent,  but  they  too  had  made 
little  progress  in  the  organization  of  society.  They  dwelt  in 
villages  mainly,  but  had  some  walled  towns.  Caesar  describes 
them  as  divided  into  factions,  and  mentions  these  factions  as 

559 


56o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

extending  into  every  clan  and  village.  The  ruling  classes  were 
divided  into  two  distinct  orders,  the  knights  and  warriors, 
whose  only  calling  was  war,  and  who  substantially  every  year 
carried  on  strife  with  some  neighbor,  and  the  Druid  priests, 
who  were  not  only  charged  with  the  management  of  religious 
rites,  but  also  were  the  judges  and  teachers  of  the  people. 
Beneath  these  ruling  classes  were  slaves  in  large  numbers, 
constituting  the  bulk  of  the  population.  The  authority  of  the 
Druids  was  very  great,  and  the  Roman  church  appears  to 
have  borrowed  some  of  its  forms  from  them.  One  method  of 
enforcing  their  judgments  was  by  excommunication  and  inter- 
dict, causing  everyone  to  fly  from  the  condemned  person  as  a 
being  accursed,  and  to  whom  they  could  give  no  aid  without 
calling  down  the  heaviest  penalties  on  themselves.  They  sac- 
rificed human  beings  to  their  gods,  preferably  criminals  and 
enemies,  but  for  want  of  these  the  innocent  were  taken,  and 
religious  enthusiasm  induced  some  to  voluntarily  become  vic- 
tims. In  their  exemptions  from  military  duty  and  from  taxes 
the  Druids  enjoyed  privileges  similar  to  those  of  the  later 
clergy.  In  the  use  of  torture  in  their  trials  and  of  burning  as 
a  punishment  they  furnished  precedents  for  the  Inquisition, 
and  they  ranked  the  crime  of  resisting  their  authority,  as  the 
later  church  did  that  of  heresy,  the  most  deadly  of  all  offenses. 
Yet  Caesar  praises  the  impartiality  of  their  justice,  and  gives 
them  credit  with  protecting  the  weak  as  well  as  the  strong. 
They  built  no  churches,  but  held  their  rites  in  the  groves. 
Whether  polygamy  was  practiced  is  not  made  very  clear,  but 
it  seems  that  it  was.  Caesar  says  that  at  marriage  the  husband 
added  to  the  wife's  dowry  an  equal  sum,  and  that  the  increase 
of  the  whole  was  kept  by  itself  and  belonged  to  the  survivor 
on  the  death  of  one  of  them.  The  husband  and  father  had 
the  power  of  life  and  death  over  his  wife  and  children.  Fu- 
nerals were  conducted  with  great  extravagance  and  ceremony, 
and  with  human  sacrifices  of  slaves  or  dependents  of  rich 
nobles.  The  Gauls  appear  to  have  passed  the  stage  of  common 
tenure  of  land  in  Caesar's  time,  for  he  speaks  of  the  Druids 
liaving  power  to  decide  questions  of  boundary.  They  were 
accustomed  to  the  use  of  money,  and  in  the  useful  arts  were 


FRAXXE  561 

considerably  in  advance  of  the  Germans.  The  Belgians  were 
more  like  the  Germans,  to  whom  they  were  nearer  and  more 
closely  related,  and  with  whom  they  were  almost  constantly 
at  war.  Some  progress  had  been  made  in  weaving  and  metal 
working.  Confederations  were  sometimes  formed  by  differ- 
ent tribes  for  defense  against  incursions  from  the  east,  but 
they  were  not  inclined  to  unite  for  aggressive  warfare. 

The  Greeks  at  an  unknown  date  settled  at  Marsailles  and 
established  Masselia,  which  became  an  important  trading  port, 
and  in  122  B.C.  the  Romans  founded  the  town  of  Aquae  Sex- 
tiae,  now  Aix,  and  spreading  out  over  the  adjacent  country 
formed  the  province  of  Gallia  Braccata,  of  which  as  a  Roman 
municipium  Narbonne  was  made  the  capital  in  118  B.C.  .  In 
the  time  of  Caesar  the  Helvetians  and  German  tribes  were 
threatening  to  invade  Gaul,  and  Caesar's  first  campaigns  were 
against  them,  with  the  Gauls  seeking  his  assistance  and  pro- 
tection. Having  overcome  these  enemies,  Caesar  proceeded  to 
reduce  Gaul  to  the  Roman  authority,  and  by  50  B.C.  had  ac- 
complished the  task.  From  Gaul  as  a  basis  he  established  his 
power  over  Rome.  Roman  institutions  were  well  adapted  to 
the  tastes  and  needs  of  the  Gauls,  who  soon  became  thorough- 
ly Romanized.  The  work  of  organization  was  not  completed 
in  Caesar's  time.  In  27  B.C.  Augustus  established  three  new 
provinces,  in  addition  to  the  old  one,  out  of  the  territory  con- 
quered by  Caesar,  namely  Aquitania  in  the  southwest,  Lugdu- 
nensis  in  the  middle  and  Belgica  in  the  north.  The  population 
of  the  country  was  mainly  of  the  ancient  stock,  with  whom 
Roman  colonists  freely  mingled.  Though  there  were  some 
revolts  after  Caesar's  time,  they  were  soon  suppressed.  The 
Romans  brought  their  system  of  agriculture,  their  laws  and 
arts.  They  built  cities,  made  roads,  encouraged  commerce  and 
established  social  order. 

A  long  period  of  peace  and  rapid  advancement  in  civiliza- 
tion followed.  By  160  the  Christian  religion  was  introduced, 
and  during  the  next  hundred  years  it  spread  rapidly.  The 
country  was  substantially  exempt  from  inroads  of  foreign 
enemies  for  about  three  centuries.  Under  the  empire  Gaul 
played  an  important  part.     Antonius  Pius  was  a  native  of 


562  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Gaul.  In  the  last  half  of  the  third  century  Postumus  estab- 
lished a  Gaulic  empire,  which  was  continued  by  his  successors 
Victorinus  and  Tetricus.  In  236  the  Alemanni,  a  German 
tribe  unknown  to  the  Romans,  crossed  the  Rhine,  but  were 
driven  back,  and  about  the  same  time  the  Goths  appeared  on 
.the  Danube.  During  the  next  half  century  there  were  many 
incursions  of  Frank  and  Alemanni  into  Gaul,  but  no  perman- 
ent conquest.  By  this  time  the  imperial  government  had  so 
ground  the  people  of  Gaul  with  taxation  that  they  were  thor- 
oughly impoverished,  and  a  notable  uprising  of  peasants  and 
slaves  took  place  in  285,  which  spread  over  the  north  of  Gaul 
and  added  to  the  miseries  of  the  people.  The  title  to  the  land 
-was  held  by  a  few,  and  the  work  of  tillage  was  mainly  per- 
formed by  slaves.  The  Gauls  under  Roman  rule  relied  on  the 
imperial  government  for  protection,  and  when  the  period  of 
disorder  came,  they  were  an  easy  prey  to  their  more  warlike 
neighbors  across  the  Rhine,  who,  free  from  Roman  domina- 
tion, organized  expeditions  when  conditions  were  favorable. 
Thus  from  260  to  268  a  band  of  Franks  swept  through  Gaul 
into  Spain  and  finally  passed  into  Africa  and  disappeared. 
From  this  time  forward  there  was  more  or  less  border  warfare 
and  incursions  of  Germanic  tribes  into  Gaul,  some  of  whom 
'effected  permanent  settlements. 

Early  in  the  fifth  century  commenced  that  movement  of 
people  which  put  an  end  to  Roman  rule  in  Gaul.  From  406  to 
409  there  was  a  deluge  of  invaders,  who  mercilessly  killed  the 
people  and  destroyed  their  property.  Cities  and  towns,  of 
which  a  great  number  had  been  built,  were  taken,  pillaged  and 
burned.  In  412  the  Visigoths  and  Burgundians  established 
kingdoms  in  the  south  of  Gaul.  In  451  Attila  and  the  Huns, 
-who  had  become  the  terror  of  Europe,  made  their  way  into 
Gaul  and  took  Orleans.  They  were  met  by  the  combined 
forces  of  Romans,  Gauls,  Goths  and  Germanic  tribes,  defeated 
■at  Chalons  in  a  great  battle,  and  expelled  from  the  country. 

The  Franks,  from  whom  France  takes  its  name,  were  main- 
ly settled  in  the  neighborhood  of  the  lower  Rhine,  and  were 
divided  into  the  Salians  and  Ripuarians.  Though  prior  kings 
are  named,  their  history  is  unimportant,  and  with  Clovis  king 


FRANCE  563 

of  the  Salian  Franks  of  Tournay  commences  the  Frankish 
state.  Clovis  was  a  fierce,  cruel,  cunning  and  unscrupulous 
barbarian,  who  did  not  hesitate  to  take  the  lives  of  all  who 
stood  in  his  way,  often  with  his  own  hand,  but  he  was  suc- 
cessful in  extending  his  power  over  nearly  all  Gaul.  He  mar- 
ried a  Christian  maid,  Chlotilde,  who,  aided  doubtless  by  other 
influences,  converted  him  to  Christianity.  His  warriors  also 
were  baptized,  but  neither  he  nor  they  took  in  much  of  Chris- 
tian morality.  He  however  became  allied  with  the  Christian 
clergy,  who  aided  him  in  extending  his  power.  The  dynasty 
founded  by  Clovis  derives  its  name  from  one  of  his  ancestors, 
and  is  styled  the  Merovingian.  With  it  the  history  of  France 
as  a  nation  begins.  At  his  death  Clovis  left  his  kingdom  di- 
vided among  his  four  sons.  He  had  acquired  most  of  it  by 
conquest,  and  he  left  it  as  an  inheritance,  divided  according 
to  the  prevailing  German  custom  among  all  his  sons.  They 
fought  for  the  shares  of  each  other,  with  the  result  that 
Clotaire  got  it  all.  At  his  death  it  was  partitioned  among 
his  four  sons-  and  again  united  under  Clotaire  H.  The  Mero- 
vingians ruled  from  5 1 1  to  752,  and  their  history  teaches  little 
but  the  evils  of  despotic  military  rule.  They  were  cruel,  per- 
fidious, debauched  and  many  of  the  later  ones  almost  idiotic. 
The  pernicious  principle  of  treating  political  power  as  property 
to  pass  by  inheritance  caused  untold  misery  and  misfortune 
to  the  people.  No  other  dynasty  illustrates  so  constantly  and 
forcibly  the  evil  consequences  of  passing  political  power  from 
father  to  son  without  regard  to  capacity  or  merit.  No  other 
dynasty  exhibits  in  more  disgusting  form  the  evils  of  despotic 
rule.  Not  kings  only,  but  queens  as  well,  displayed  their 
cruelties  and  vices.  The  stories  of  Fredegonde  and  Brune- 
child  are  typical  of  a  most  cruel  age  and  the  execution  of  the 
latter,  at  the  advanced  age  of  eighty  by  tying  her  to  the  tail 
of  an  unbroken  horse  by  the  hair  of  her  head,  one  arm  and 
one  foot,  of  the  possibilities  of  kingly  cruelty  under  Clotaire 
II.  Murder  and  rapine  lay  at  the  foundation  of  the  kingdom, 
and  morality  found,  little  lodgment  in  the  palace  or  the  home 
of  the  great  landlord.  Christianity  was  for  them  merely  the 
name  of  a  superstition,  and  these  coarse  and  brutal   rulers 


564  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

hoped  for  aid  in  their  cruel  deeds  from  the  unseen  power,  to 
whose  priests  they  gave  present  of  lands  and  goods. 

The  government,  laws  and  land  tenure,  which  developed 
as  a  result  of  the  conquest  of  the  Franks,  were  made  from 
three  widely  different  systems.  Before  the  advent  of  the 
Franks  the  Roman  law  furnished  rules  for  all  property  rights, 
land  tenure  and  inheritance,  as  well  as  for  determining  the 
status  of  citizens  and  slaves.  The  people  were  accustomed  to 
submit  to  the  cruel  exactions  of  the  tax  gatherers,  who  robbed 
them  of  their  substance  without  returning  any  considerable 
benefit  in  the  way  of  public  works  or  services.  Illiteracy  and 
ignorance  were  general,  and  the  moral  tone  of  society  low. 
A  large  proportion  of  the  people  was  held  as  slaves  to  the  rest. 
In  race  the  inhabitants  were  mainly  Gauls,  with  an  admixture 
of  Romans,  and  with  settlements  of  Goths  and  other  Germanic 
tribes  in  places.  The  Franks  had  never  been  subject  to  Roman 
rule  or  law.  They  preserved  and  followed  most  of  the  ancient 
German  customs,  though  the  power  of  the  king  had  been  con-, 
siderably  increased.  The  controlling  power  of  the  nation  still 
resided  in  the  assembly  of  freemen,  but  the  king  and  his  an- 
trustions,  the  followers  of  his  person,  had  become  a  military 
caste  and  largely  dominated  the  affairs  of  the  state. ^ 

Three  orders  of  people  had  been  formed  among  them.  The 
antrustions,  the  freemen  and  slaves,  whose  relative  importance 
may  be  judged  by  the  rate  of  composition  allowed  for  taking 
the  life  of  one  of  them.  For  the  antrustion,  six  hundred  sous, 
for  an  ordinary  freeman  two  hundred  sous  and  for  a  bondman 
forty-five  sous.  At  and  prior  to  the  time  of  Clovis  the  antrus- 
tions had  not  become  a  landed  aristocracy.  They  were  the 
companions  and  personal  followers  of  the  king,  who  fought 
with  him  and  received  a  share  of  the  booty  taken,  and  were 
accorded  a  degree  of  consideration  above  that  of  ordinary 
freemen.  To  just  what  degree  the  ancient  German  system  of 
common  tenure  of  land  had  been  modified  it  is  difficult  to  de- 
termine, but  neither  the  idea  of  individual  ownership  of  an 

*  For  a  very  full  and  interesting  account  of  the  development  of  the 
laws  of  France  see  Broussaud's  French  Private  Law,  Continental  Legal 
History  Series,  vol.  3, 


FRANCE  565 

inheritance  in  the  soil,  nor  of  feudal  tenure,  had  gained  gen- 
eral recognition.  In  religion  they  worshipped  the  fierce  Ger- 
man gods  without  the  intervention  of  any  priestly  order.  In 
domestic  life  they  were  monogamists,  and  their  women  were 
treated  as  companions.  Though  their  customs  admitted  slav- 
ery, slaves  were  not  numerous  among  them.  On  their  advent 
into  Gaul  they  found  the  Roman  Church.  It  had  supplanted 
the  ancient  Druids  and  already  owned  considerable  estates. 
Among  a  people  sunk  in  ignorance  and  prone  to  gross  super- 
stition, the  clergy,  with  the  mystery  of  book  and  bell,  had 
gained  great  influence,  and  through  the  confessional,  absolu- 
tion, baptism,  marriage  and  the  many  functions  assumed  as 
pertaining  to  religion,  exercised  a  potent  authority.  Clovis 
adopted  this  religion,  and  his  soldiers  followed  him  to  baptism 
as  they  did  to  battle.  Though  in  after  times  contentions  some- 
times arose  between  the  princes  and  the  clergy,  the  two,  work- 
ing in  concert,  contributed  greatly  to  each  other's  power.  The 
princes  encouraged  the  support  of  the  church,  and  often  grant- 
ed it  great  possessions,  and  in  return  the  clergy  taught  the 
ignorant  multitude  the  divine  right  of  kings  to  rule  and  the 
sacredness  of  their  persons.  The  church  had  its  peculiar  list 
of  offenses  against  its  rules  and  authority  and  its  own  system 
of  punishing  offenders.  The  Franks  as  conquerors  became  the 
dominant  force,  and  in  all  matters  pertaining  to  the  rights  of 
Franks  the  Salic  law  prevailed,  but  it  was  crude  and  covered 
only  the  needs  of  a  comparatively  simple  people.  The  Roman 
law,  having  been  the  development  of  a  great  empire  during  a 
long  course  of  time,  was  of  far  greater  volume  and  complexity, 
but  owing  to  the  long  period  of  oppression,  the  general  ignor- 
ance and  the  inefficiency  of  the  judicial  system,  there  was  not 
much  knowledge  of  its  principles  among  the  people.  The 
existence  of  its  learning  and  refinements  in  scattered  volumes, 
which  few  even  of  the  ruling  class  could  read,  afforded  almost 
no  protection  to  any  one  in  his  rights.  The  canons  of  the 
church  were  of  more  living  force,  for  they  were  studied  and 
followed  by  the  clergy  in  all  matters  of  ecclesiastical  cogni- 
zance. The  earliest  code  of  Salic  law  extant  is  of  uncertain 
date,  but  must  have  been  written  subsequent  to  the  early  con- 


A 


566  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

quests  of  Clovis.  The  legislative  power  was  still  in  the  as- 
sembly of  freemen,  and  the  judicial  power  in  a  judicial 
assembly  of  freemen.  Punishments  were  almost  exclusively 
by  fines,  and  the  law  determined  the  distribution  of  weregeld 
among  the  kindred  of  a  murdered  man.  It  is  said  that  the 
Germans  knew  only  two  capital  crimes.  They  hanged  traitors 
and  drowned  cowards.  All  other  offenses  could  be  commuted 
in  money.  In  their  first  inroads  the  Franks  came  as  red-hand- 
ed spoilers.  The  plunder  taken  was  divided  among  the  con- 
querors. At  first  they  did  not  covet  land  so  much  as  cattle 
and  goods,  which  they  took  wherever  they  could  find  them. 
In  the  development  of  the  system  of  land  tenure  it  was  not  at 
first  the  custom  to  grant  great  fiefs  in  perpetuity,  or  even  for 
life.  In  that  system  which  afterward  became  so  general,  by 
which  the  power  and  dignity  of  the  nobles  were  measured  by 
the  tenure  and  value  of  their  lands,  the  first  step  hardly  con- 
tained a  hint  of  what  followed.  At  first  the  counts  were  sent 
to  rule  over  their  districts  for  a  year  only.  The  distribution 
of  the  counties  was  a  matter  debated  in  the  general  assembly, 
but  later  it  was  solely  for  the  king.  The  authority  of  the 
counts  was  renewed  from  time  to  time,  until  an  assignment  to 
a  county  was  generally  equivalent  to  a  term  for  life. 

Clovis  and  his  sons  raised  and  led  their  own  armies,  ap- 
pointed the  counts  who  ruled  in  the  counties  and  the  chiefs  of 
hundreds,  but  in  the  course  of  a  few  generations  the  inca- 
pacity of  the  kings  made  it  necessary  to  choose  more  vigorous 
leaders.  In  a  society  constituted  like  that  of  the  Franks  at 
that  time  the  chief  man  in  the  household  of  the  king,  where 
all  the  principal  men  congregated,  naturally  exercised  the 
authority  which  the  king  was  too  weak  or  too  indolent  to 
exert.  The  mayors  of  the  palace  were  sometimes  named  by 
the  kings  to  aid  them  in  their  struggles  with  the  lendes,  the 
antrustions,  and  sometimes  elected  by  the  lendes  in  opposition 
to  the  king.  While  the  kingdom  was  divided,  in  Neustria  the 
mayors  supported  the  interests  of  the  kings,  while  in  Austrasia 
they  sided  with  the  lendes.  The  mayors  assigned  the  lords  to 
their  fiefs,  raised  the  armies  and  led  them  to  battle.  Under 
Dagobert  I  and  his  son,  Sigebert  II  of  Austrasia,  Pepin  of 


FRANCE  567 

Landen,  who  had  acquired  vast  possessions  and  great  military 
prestige,  became  mayor  of  the  palace.  His  son  and  then  his 
grandson  Pepin  succeeded  to  his  authority.  The  latter  for 
twenty-seven  years  and  during  the  time  of  four  kings  exer- 
cised the  chief  power  in  the  state.  He  sought  to  pass  his 
power  at  his  death  to  an  infant  grandson  by  his  first  wife,  but 
the  nobles  would  not  have  it  so  and  chose  his*  son  Charles  in- 
stead. Charles  became  the  real  ruler,  and  the  kings  were 
mere  puppets  in  his  hands.  The  invasion  of  the  Mohamme- 
dans and  their  crushing  defeat  by  the  Christians  under  the 
command  of  Charles  at  Poiters  in  732  gave  him  the  name  of 
Martel  and  greatly  strengthened  his  position.  Charles  found 
it  necessary  in  order  to  carry  on  his  wars  to  make  the  church 
contribute,  and  did  not  hesitate  to  lay  hold  of  church  lands 
and  confer  them  on  his  'followers.  Still  he  was  a  zealous 
churchman,  and  labored  not  only  to  drive  back  the  Moslems, 
but  also  to  propagate  Christianity  in  Germany.  At  his  death 
he  transmitted  a  divided  authority  to  his  two  sons,  but  one 
of  them  soon  withdrew  to  a  monastery,  leaving  Pepin  sole 
mayor  and  ruler  in  fact. 

In  752,  with  the  advice  and  consent  of  the  Pope,  the  gen- 
eral assembly  of  lords  and  bishops  proclaimed  Pepin  king  and 
put  an  end  to  the  puppet  kings.  During  the  times  of  the 
mayors  of  the  palace  much  progress  had  been  made  in  the 
development  of  the  feudal  system.  Land  had  become  the 
source  of  wealth  and  power.  The  possessions  of  the  church 
had  been  extended  at  times  and  taken  away  at  others.  The 
many  partitions  of  the  kingdom  and  the  constant  struggles 
between  the  descendants  of  Clovis,  and  later  the  mayors  of 
the  palace,  for  the  whole  kingdom,  with  the  frequent  murders 
and  confiscations,  brought  new  lands  to  the  king,  which  he 
found  it  necessary  to  confer  on  his  retainers  in  consideration 
of  their  support.  Each  vassal  receiving  a  benefice  became 
bound  to  furnish  aid  to  the  sovereign,  corresponding  with 
the  size  of  his  estate.  In  this  manner  much  land  had  become 
the  subject  of  tenure  as  benefices  from  the  king  or  mayor, 
though  most  of  it  was  then  held  only  for  life. 

The  succeeding  reign  of  Charlemagne  stands  out  in  bold 


568  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

relief  in  a  barbarous  age.  The  extension  of  his  empire  and 
the  system  of  government  he  estabhshed  have  already  been 
considered  in  the  chapter  on  Mediaeval  Europe  and  will  not 
be  here  repeated.  The  feudal  system  as  developed  in  France 
has  also  been  treated  in  the  same  connection.  The  house 
established  by  Pepin  reached  its  acme  of  intellectual  vigor  as 
well  as  of  power  in  Charlemagne.  With  all  his  prudence  in 
affairs  of  state,  he  adhered  to  the  ancient  Prankish  custom  of 
dividing  his  empire  as  an  inheritance  among  his  sons,  and  this 
custom  continued  under  the  Carlovingians  as  in  the  first  dyn- 
asty. The  nobility,  from  being  personal  followers  of  the  king, 
entrusted  by  him  with  the  administration  of  local  affairs  for 
such  limited  period  as  he,  with  the  assent  of  the  popular  as- 
sembly might  fix,  had  grown  in  power  and  asserted  a  title  to 
great  estates;  and  from  the  time  of  Charlemagne  the  bene- 
fices began  to  be  treated  as  inheritances  which  the  king  had  no 
power  to  take  away.  With  a  firm  hold  on  the  land  the  feeling 
of  dependence  on  the  king  abated,  and  the  system,  which  was 
originally  designed  to  create  a  strong  bond  of  imion  between 
king  and  vassal,  by  a  very  natural  evolution  rendered  the  king 
dependent  on  his  great  vassals  and  reduced  his  authority  to  a 
shadow.  The  genius  and  energy  of  Charlemagne  led  him  to 
take  the  utmost  pains  to  gather  information  with  reference  to 
the  condition  of  affairs  in  every  part  of  his  empire.  He  held 
frequent  assemblies  of  the  freemen,  where  laws  and  regu- 
lations were  discussed.  From  these  the  double  advantage 
accrued  of  gathering  information  from  the  people  drawn 
together  from  different  parts  of  the  states  for  his  own  en- 
lightenment, and  the  dissemination  of  knowledge  and  instruc- 
tion in  laws  and  principles  of  government  among  the  leading 
citizens.  He  also  employed  messengers,  constantly  traveling 
over  the  country,  to  learn  and  report  how  the  local  affairs 
were  being  administered  and  what  the  needs  of  the  people 
were.  Nothing  indicates  more  strongly  his  wonderful  energy 
and  capacity  than  his  success  in  gaining  and  distributing  in- 
formation. Herein  lies  one  of  the  greatest  inherent  weak- 
nesses of  a  government  by  a  single  ruler.  He  cannot  and  does 
not  know  much  about  the  conditions  and  the  needs  of  his  sub- 


FRANCE  569 

jects.  In  the  nature  of  things  a  single  person  can  be  in  but 
one  place  and  investigate  but  one  subject  at  a  time.  In  a  great 
kingdom  there  are  thousands  of  places  and  subjects  requiring 
careful,  patient,  intelligent  consideration,  and  often  vigorous 
action.  To  the  indolent  king  in  his  palace  with  his  dissolute 
courtiers  the  needs  of  the  times  are  almost  unknown,  and 
often  the  capacity  to  act  efficiently  is  wanting.  The  task  is 
altogether  too  great  even  for  the  greatest  of  men.  This  truth 
was  well  illustrated  in  the  succeeding  reign  of  Louis  the  Pious, 
who  is  characterized  as  moral,  cultured  and  actuated  by  the 
highest  motives  and  purposes,  yet  in  his  tastes  he  was  modest 
and  retiring,  preferring  solitary  study  to  mingling  with  the 
throng.  The  government  of  such  an  empire  imperatively  de- 
manded the  utmost  vigor  in  gathering  knowledge  of  what 
was  going  on  and  the  most  prompt  and  resolute  action.  It 
was  not  an  age  when  moral  worth  in  a  king  brought  volun- 
tary compliance  with  his  wishes.  The  soldiers,  who  had 
followed  his  father,  Charlemagne,  in  his  victories,  were  fierce 
barbarians.  Charles  himself  could  be  bloody  and  cruel  when 
he  deemed  it  useful,  as  in  the  case  of  the  revolted  Saxons, 
when  he  cause  the  heads  of  four  thousand  five  hundred  6f 
their  chief  men,  whom  he  had  summoned  to  meet  him,  to  be 
all  cut  off  in  one  day.  Gentleness  and  humility  were  virtues 
not  then  appreciated  in  a  ruler.  Courage,  strength  and  an 
iron  will  were  requisite  to  the  control  of  a  turbulent  and  im- 
moral nobility.  The  reign  of  the  pious,  kind  Louis  was  of 
weakness,  disorder  and  civil  war.  In  the  laws  which  he  pro- 
mulgated the  wonderful  diversity  of  genius  and  marvelous  in- 
tellectual energy  of  Charlemagne  is  displayed.  His  Capitu- 
laries included  articles  inculcating  moral  precepts,  regulating 
matters  political  and  of  administration,  prescribing  penalties, 
regulating  civil  rights,  relating  to  religious  matters,  canonical 
observances  and  incidental  matters.  The  Capitularies  were 
lacking  in  system  and  logical  arrangement,  and  many  of  them 
were  mere  expressions  of  sentiment  on  some  moral  or  religious 
subject,  but  taken  all  together  they  exhibit  the  activities  of  a 
remarkable  mind,  capable  at  the  same  time  of  formulating 
rules  and  carrying  them  into  practical  operation.    Unlike  some 


570  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  his  successors,  Charles  was  not  afraid  of  learning,  but  had 
a  school  in  the  palace  conducted  by  the  best  teachers  he  could 
obtain,  and  he  encouraged  the  dissemination  of  such  learning 
as  was  then  taught.  There  was  too  much  ignorance  and  bar- 
barism for  him  to  fear  the  effects  of  learning  among  the 
people.  It  was  a  most  laudable  command  he  gave  to  the  bishops 
and  abbots,  that  in  the  cloistral  schools  "they  should  take  care 
to  make  no  difference  between  the  sons  or  serfs  and  of  free- 
men, so  that  they  might  come  and  sit  on  the  same  benches  to 
study  grammar,  music  and  arithmetic."  Charles  ruled  forty- 
six  years  from  768  to  814  with  Aix  la  Chapelle  as  his  capital 
and  an  empire  covering  parts  of  Italy  and  Germany  and  all  of 
France.  The  empire  he  established  fell  apart  under  his  suc- 
cessors, and  the  Carlovingian  dynasty  came  to  an  end  in  987, 
prior  to  which  time  thirteen  kings  of  that  race  sat  on  the 
throne  of  France.  During  this  period  there  were  many  incur- 
sions of  the  Northmen,  who  ravaged  the  coasts,  ascended  the 
rivers,  took  and  pillaged  many  of  the  chief  towns.  These  be- 
came more  frequent  and  in  larger  numbers  until  the  reign  of 
Charles  the  Simple,  when  the  Northmen  under  the  lead  of  Rolf 
settled  at  Rouen.  In  912  Rolf  was  given  as  a  fief  the  lands 
he  and  his  followers  had  conquered  and  became  a  vassal  of  the 
king.  The  Normans  settled  down  to  agriculture,  and  no  fur- 
ther incursions  ensued. 

The  Magyars  made  inroads  from  910  to  954  in  the  eastern 
provinces  but  effected  no  permanent  settlement.  The  feudal 
system  continued  to  grow,  and  the  inheritance  by  the  sons  of 
the  great  vassals  of  their  fiefs  became  an  established  rule.  The 
German,  Italian  and  French  portions  of  the  empire  fell  apart 
in  843.  The  provinces  were  treated  as  property,  to  be  bestow- 
ed and  distributed  according  to  the  king's  pleasure,  and  France 
was  divided  to  meet  the  varying  conditions.  The  progress 
made  in  the  development  of  the  inheritance  of  fiefs  is  indicated 
by  a  capitulary  of  Charles  the  Bald  in  877. 

"If  after  our  death  any  of  our  lieges  moved  by  love  for  God 
and  our  person  desires  to  renounce  the  world,  and  if  he  have 
a  son  or  other  relative  capable  of  serving  the  public  weal,  let 
him  be  free  to  transmit  him  his  benefices  and  his  honor  accord- 


FRANCE  571 

ing  to  his  pleasure.  If  a  count  of  this  kingdom  happen  to 
die  and  his  son  be  about  your  person  we  will  that  our  son,  to- 
gether with  those  of  our  lieges  who  may  chance  to  be  the 
nearest  relatives  of  the  deceased  count,  as  well  as  with  the 
other  officers  of  the  said  countship,  and  the  bishops  of  the 
diocese  wherein  it  is  situated,  shall  provide  for  its  administra- 
tion until  the  death  of  the  heretofore  count  shall  have  been 
announced  to  us  and  we  have  been  enabled  to  confer  on  the 
son  piesent  at  our  court  the  honors  wherewith  his  father  was 
invested."  Thus,  while  the  king  nominally  retained  the  right 
to  confer  the  fief  at  the  death  of  the  tenant,  he  recognized  the 
right  of  the  heir  to  take  it.  During  this  period  the  power  of 
local  administration  and  the  ownership  of  land  had  become 
consolidated.  The  counts,  who  under  Charlemagne  were 
merely  his  local  officers,  had  all  become  great  landowners  and 
ruled  their  estates  because  they  owned  them.  Political  power 
passed  by  inheritance  with  the  land.  Under  the  Carlovingians 
the  feudal  system  continued  its  development  and  by  the  end 
of  that  dynasty  the  great  lords  and  the  heads  of  the  church 
represented  the  political  power  of  the  state.  Subinfeudation 
had  become  a  part  of  the  system,  and  the  great  lords  had  their 
vassals  holding  considerable  estates  with  other  vassals  below 
them.  The  advantages  of  connection  with  the  ruler  of  the 
district  led  those  holding  allodial  lands  to  give  them  to  the 
lord  and  receive  them  back  as  fiefs.  By  so  doing  the  tenant 
became  a  person  of  greater  consideration,  entitled  to  a  larger 
composition  in  case  of  injury,  exempted  from  the  confiscation 
of  his  property  for  failure  to  appear  in  court  or  obey  the 
judge^s  orders,  and  from  trial  by  ordeal  of  boiling  water  for 
petty  crimes.  The  immediate  vassal  of  the  king  could  not  be 
compelled  to  testify  in  court  against  another  vassal,  nor  to 
swear  in  person  at  all,  but  only  by  the  mouths  of  his  own 
vassals.  Thus  there  was  great  advantage  in  holding  directly 
from  the  king.  This  process  of  converting  the  allodium,  or 
independent  tenure  of  lands,  into  fiefs  became  most  active 
under  the  weak  kings,  when  the  local  lords  became  the  real 
rulers,  unrestrained  by  any  central  authority.  It  continued 
under  the  third  dynasty.    As  to  much  of  the  land,  the  church- 


572  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

men  held  the  places  of  feudal  lords,  and  archbishops,  bishops 
and  abbots  were  temporal  rulers,  who  took  a  leading  part  in 
national  affairs. 

On  the  death  of  Louis  the  Sluggard,  the  last  of  the  Carlov- 
ingians,  in  987,  the  lords  spiritual  and  temporal  met  at  Sanlis 
and  Adalberon,  archbishop  of  Reims  induced  those  present  to 
put  off  the  choice  of  a  king  till  a  more  general  meeting  could 
be  held,  and  to  swear  to  the  duke  of  Paris  ''between  his  hands" 
that  in  the  meantime  they  would  do  nothing  in  the  way  of  the 
election  of  a  king.  About  the  last  of  June  they  reassembled 
and,  putting  aside  as  unworthy  Charles  of  Lorraine,  a  lineal 
descendant  of  Charlemagne  and  uncle  of  the  late  King  Louis, 
on  motion  of  the  archbishop  they  chose  Hugh  Capet,  count  of 
Paris,  a  descendant  of  that  Count  Eudes  who  had  stoutly  de- 
fended Paris  against  the  siege  of  the  Northmen,  as  king.  He 
was  thereupon  proclaimed  and  crowned  king  by  the  metropoli- 
tan. He  was  thus  made  king  by  the  church  and  the  feudal 
lords,  and  the  dynasty  so  established  was  a  feudal  one  under 
church  influence.  In  return  for  kingly  aid  the  church  taught 
the  divine  right  of  the  king  to  rule  and  the  doctrine  of  sub- 
mission and  obedience  to  his  authority,  no  matter  how  unjustly 
or  oppressively  exercised. 

In  the  election  of  Capet  the  French  clergy  exhibited  excep- 
tional independence,  for  Pope  John  XVI  sustained  the  claims 
of  Charles.  The  reign  of  Hugh  Capet  lasted  only  from  987 
to  996.  On  his  death  his  son  Robert  succeeded  him,  and  he 
and  his  son  Henry  and  grandson  Philip  ruled  till  1108.  Capet 
and  his  successors  were  great  landowners  and  ruled  as  counts 
of  Paris  over  their  estates  and  province.  The  kingly  office 
gave  added  prominence  rather  than  a  great  increase  of  power. 
The  king  had  feudal  superiority  and  precedence  over  his  great 
vassals,  whom  he  had  a  right  to  call  on  to  aid  him  in  his  wars, 
but  he  could  not  pass  the  vassals  by  and  command  the  follow- 
ers under  them.  Within  his  own  district  the  feudal  lord 
brooked  no  dictation  as  to  the  conduct  of  local  affairs,  even 
from  the  king.  The  king's  court,  however,  was  the  fountain 
of  honor  and  distinction,  and  kingly  power,  though  not  vig- 
orously exercised  during  this  period,  was  more  than  a  shadow. 


FRANCE  573 

This  was  a  time  of  freedom  from  foreign  wars.  The  vassals 
fought  their  private  wars  and  the  king  sometimes  took  part 
in  them.  In  the  time  of  Capet  there  was  some  resistance  to 
his  authority  by  followers  of  the  Carlovingians,  but  they  were 
subdued. 

That  the  common  people  felt  the  grinding  oppression  of  the 
system  is  evidenced  by  revolts  of  the  peasants,  one  of  which 
occurred  in  Normandy  and  was  suppressed  with  great  barbar- 
ity. The  church,  too,  began  to  exhibit  cruel  jealousy  of  any 
-questioning  of  its  authority,  and  the  burning  of  heretics  be- 
came one  of  its  functions.  The  relations  of  king  and  vassals 
are  well  illustrated  by  the  aid  afforded  by  King  Henry  I  to 
young  William  of  Normandy,  against  his  revolted  vassals,  aid- 
ed by  Guy  of  Burgundy,  and  later  by  the  war  between  King 
Henry  and  William  in  which  the  king  was  defeated  by  Wil- 
liam in  two  battles.  The  king  died  soon  after  and  William 
appeared  at  the  coronation  of  his  son  Philip,  for  whom  he 
fought  against  his  revolted  subjects.  It  may  almost  be  said 
that  private  war  was  so  general  and  inseparable  an  incident  of 
the  times  that  it  did  not  imply  real  enmity  between  the 
combatants. 

This  was  the  age  when  knighthood  flourished.  It  was  es- 
sentially a  military  order  of  mounted  and  armored  warriors. 
The  code  of  duty  and  honor,  to  which  a  knight  was  sworn, 
exhibits  a  strange  blending  of  pure  Christian  virtues  and  as- 
pirations, with  wars'  savagery.  Many  different  orders  of 
knighthood  were  formed  during  the  crusades.  In  the  earliest 
stages  knighthood  was  connected  with  the  feudal  system  of 
land  tenure  and  implied  the  possession  of  a  fief  of  sufficient 
value  to  maintain  the  knight,  supply  him  a  horse  and  armor 
and  means  to  defray  his  expenses  during  the  customary  period 
of  knightly  service  in  the  wars  of  his  over  lord.  There  were 
various  methods  of  conferring  knighthood.  That  deemed 
most  honorable  was  for  valiant  service,  and  conferred  by  the 
over  lord  on  the  field  of  battle.  The  members  of  the  knightly 
orders  of  fighting  priests,  which  were  organized  during  the 
crusades,  were  not  necessarily  holders  of  fiefs,  or  of  any  lands. 
In  course  of  time  knighthood  came  to  be  conferred  only  on 


574  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

descendants  of  the  nobility.  The  ceremony  of  investiture  might 
be  purely  military  or  a  combination  of  both  religious  and  mili- 
tary rites.  When  conferred  in  times  of  peace  with  full  re- 
ligious ceremonies,  the  candidate  for  knighthood  was  required 
to  first  purify  himself  in  a  bath  and  clothe  himself  in  a  white 
tunic,  symbolical  of  purity,  a  red  robe,  symbolical  of  the  blood 
he  would  shed  for  the  faith,  and  a  black  coat,  emblematic  of 
the  death  awaiting  all  men.  He  must  fast  for  twenty-four 
hours,  then  enter  the  church  and  spend  a  night  in  prayer. 
After  confession  he  received  the  communion,  and  often  listen- 
ed to  a  sermon  on  the  duties  of  knighthood.  He  then  ad- 
vanced to  the  altar  with  the  knight's  sword  hanging  from  his 
neck.  This  the  priest  took  off,  blessed  and  replaced  on  his 
neck.  He  then  knelt  before  his  superior  lord  and  having  been 
duly  questioned  and  made  the  required  responses,  received  his 
spurs,  coat  of  mail,  cuirass  and  sword  and  was  dubbed  knight 
by  receiving  three  blows  from  the  lord  with  the  flat  of  the 
sword  on  his  shoulder  or  neck.  The  knightly  oath  bound  him 
above  all  to  be  a  bold  and  constant  fighter,  a  fierce  barbarian  in 
the  service  of  his  king,  his  overlord  and  the  church,  but  to  up- 
hold the  rights  of  widows,  orphans  and  damsels,  to  injure  nO' 
one  maliciously  nor.  fight  for  gain,  but  only  for  glory  and 
virtue,  to  guard  the  honor  and  rank  of  his  comrades  and  do  not 
trespass  against  them,  to  be  truthful  and  keep  faith  inviolably 
with  all  the  world  and  aid  one  another,  to  shun  no  danger,  nor 
take  pay  from  any  foreign  prince,  to  live  in  order  and  disci- 
pline when  in  command  of  troops,  to  faithfully  defend  females 
in  his  charge  and  do  them  no  evil,  that  being  challenged  to 
equal  combat  he  would  not  refuse  to  fight,  that  in  the  pursuit 
of  honor  he  would  dare  and  do  his  utmost,  "that  above  all 
things  he  would  be  faithful,  courteous  and  humble,  and  would 
never  be  wanting  to  his  word  for  any  harm  or  loss  that  might 
accrue  to  him."  Had  the  knights  generally  strictly  adhered  to 
these  precepts,  many  of  which  breathe  the  purest  and  loftiest 
sentiments,  the  world  would  have  progressed  rapidly  from  its 
degraded  state,  but  unfortunately  the  part  most  faithfully  'fol- 
lowed was  that  which  enjoined  fighting  and  bloodshed.  The 
Christian  virtues  of  truthfulness  and  protection  to  the  weak 


I 

FRANCE  575 

were  far  too  often  neglected.  Still  this  kinghtly  code  exer- 
cised a  profound  influence  on  society.  The  times  were  a 
strange  mixture.  In  church  and  monastery  might  be  found 
zealots  struggling  to  attain  an  ideal  purity  and  holiness  by 
the  sacrifice  of  all  wordly  comfort  and  enjoyment.  Fasts, 
vigils,  scourgings  and  all  manner  of  mortifications  of  the 
flesh  were  self-inflicted  and  patiently  endured  to  attain  spirit- 
ual purification,  On  the  other  hand  some  churches  and  mon- 
asteries were  the  homes  of  ambitious  men,  who  cunningly 
sought  wealth  and  power  or  lived  as  idle  debauchees,  secretly 
scofl^ing  at  virtue,  religion  and  morality.  It  was  the  age  o'f 
discord  and  of  superstition.  The  estate  of  each  petty  noble 
was  essentially  a  separate  sovereignty,  from  which  the  com- 
mon herd  were  never  allowed  to  wander.  There  was  no  inter- 
course between  those  dwelling  at  a  distance  from  each  other, 
unless  they  were  of  knightly  rank.  At  the  king's  court  and 
at  the  tournaments  the  knights  gathered  for  their  fierce  sports. 
Education  was  wholly  neglected  among  the  common  herd  and 
hardly  less  among  the  nobles;  even  among  the  monks  many 
were  illiterate,  and  the  learning  of  the  clergy  was  sadly  de- 
ficient. Yet  in  some  quiet  cells  there  were  earnest  students 
and  patient  scholars  who  sought  light  and  truth  with  great 
diligence.  This  was  the  age  which  brought  forth  William  of 
Normandy,  the  conqueror  of  England,  a  bastard  son  Oif  Count 
Robert,  descended  from  Rolf  the  Northman,  who  had  won 
his  foothold  there  about  a  century  and  a  half  before  the  inva- 
sion of  England.  William's  mother  was  the  daughter  of  a 
tanner,  and  it  is  probable  that  he  owed  much  of  his  vigor  and 
ability  to  her.  By  reason  of  the  seafaring  habits  of  the  Nor- 
mans and  their  proximity  to  England,  there  was  much  inter- 
course across  the  channel.  On  Sept.  27,  1066  William  sailed 
with  his  fleet  to  effect  the  conquest  of  England.  How  large 
a  force  he  took  or  in  how  many  or  how  large  ships  he  sailed 
we  have  no  definite  record,  but  he  won  the  battle  of  Hastings 
and  gained  the  English  throne.  Thus  a  vassal  of  the  French 
king  became  ruler  of  England.  The  claims  of  the  Norman  to 
rights  in  France  as  a  feudal  lord  became  a  prolific  source  of 
contention  and  wars  between  the  two  countries,  from  which 
little  but  evil  resulted  to  the  people  of  both. 


576  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Stirred  by  the  preaching  of  Peter  the  Hermit  the  First  Cru- 
sade started  in  1096  to  free  the  Holy  Land  and  clear  the  way 
for  the  pilgrims.  Since  the  age  of  Charlemagne  there  had 
been  no  foreign  wars  to  take  the  people  of  France  into  far  dis- 
tant lands.  There  was  but  little  commerce,  and  the  inter- 
course between  distant  people  was  exceedingly  limited.  The 
pilgrimages  of  the  devout  to  Jerusalem  afforded  almost  the 
only  occasion  for  gaining  knowledge  of  foreign  countries  and 
these  of  necessity  were  not  in  great  number.  The  people  of 
France,  always  noted  for  their  daring  and  generous  impulses, 
were  profoundly  moved  by  the  accounts  of  the  sufferings  of 
the  pilgrims  and  the  profanation  of  the  Holy  City  by  the  in- 
fidels. France  furnished  a  large  portion  of  the  army  for  the 
first  crusade  and  its  most  noted  and  efficient  leaders,  Godfrey 
of  Bouillon,  Raymond  of  Toulouse,  Tancred  de  Hauteville 
and  other  less  noted  men  led  the  organized  force,  and  followed 
the  great  multitude  which  started  as  a  mob  and  ended  in  dis- 
aster. The  impulse  which  moved  the  crusades  was  not  moral 
but  religious.  Nothing  in  history  better  illustrates  the  dif- 
ference between  morals  and  religion.  The  people  were  pro- 
foundly stirred  by  the  preaching  of  Peter  and  his  details  of 
the  desecration  of  the  Holy  City  and  of  the  wrongs  and  in- 
dignities suffered  by  the  many  pilgrims,  who  sought  miracu- 
lous aid  from  a  spot  supposed  to  be  possessed  of  peculiar  vir- 
tures  because  of  its  association  with  Jesus,  the  apostles  and 
saints.  The  purpose  of  the  crusaders  was  war  against  the 
infidels,  for  whose  blood  they  thirsted.  In  passing  through  the 
intermediate  country  to  Constantinople,  being  unprovided  with 
supplies  or  money,  they  foraged  as  if  in  an  enemy's  country, 
and  were  guilty  of  all  manner  oif  brutality  and  excesses,  so 
that  they  were  quite  as  much  the  dread  of  the  European  Chris- 
tians as  of  the  Moslems  of  Syria.  After  many  delays,  much 
discord  and  sometimes  bloodshed  among  them,  the  crusaders 
on  the  15th  of  July,  1099  took  Jerusalem  by  assault  and 
slaughtered  great  numbers  of  the  Mohammedans.  .  The  lead- 
ing purpose  had  been  accomplished  and  Godfrey  de  Bouillon, 
refusing  the  title  of  king,  became  Defender  and  Baron  of  the 
Holy  Sepulchre.     Though  the  political  and  religious  conse- 


FRANCE  577 

quences  of  the  crusades  were  of  minor  importance,  the  edu- 
cational influences  were  very  great.  Not  only  from  all  parts 
of  France,  but  from  Spain,  England,  Italy,  Germany  and  in 
fact  the  whole  Christian  world,  the  boldest  and  most  enter- 
prising knights  were  gathered  to  fight  for  the  faith  they  pro- 
fessed. They  journeyed  through  strange  lands  and  came  in 
contact  with  strange  people.  The  Greeks  of  the  eastern  em- 
pire were  scarcely  better  known  to  them  than  the  Turks, 
Arabs  and  Egyptians,  whom  they  came  to  fight.  The  rude 
Christians  saw  the  cities  and  gardens  of  the  East.  People 
were  moved  to  view  a  wider  horizon  and  to  long  for  knowl- 
edge of  distant  lands  and  alien  people.  This  is  the  greatest 
good  that  ever  results  from  distant  wars.  In  spite  of  the 
cruelty  and  bloodshed,  the  combatants  learn  to  know  and  to 
respect  each  other.  Instead  of  the  settled  hatred  of  distant 
enemies,  some  measure  of  respect  and  even  of  friendship  re- 
sults. Commerce  ifounded  on  mutual  benefit  develops,  and 
stimulated  by  trade  the  industries  of  each  land  take  on  new 
activities,  and  the  peaceful  intercourse  of  merchants  slowly 
but  surely  lays  the  foundation  for  lasting  peace  and  mutual 
good  will.  The  scattered  people  of  Europe,  who  from  the  fall 
of  the  Roman  power  had  dwelt  in  comparative  isolation  for 
six  centuries,  were  now  made  acquainted  with  each  other. 
Returning  crusaders  could  tell  from  personal  knowledge  of 
many  strange  people  and  distant  lands.  The  impulse  thus 
given  to  thought  and  the  desire  for  knowledge  which  it  stimu- 
lated were  of  the  greatest  importance  and  by  far  the  most 
valuable  of  all  the  results  of  the  crusades.  No  country  was 
represented  by  more  or  better  men  in  the  Christian  ranks 
than  France,  and  none  profited  more  from  the  educational  in- 
fluence. The  Christian  rule  in  Jerusalem  ended  in  1187  and 
was  never  productive  of  important  political  results.  None  of 
the  crowned  heads  took  part  in  the  First  Crusade,  but  the  sec- 
ond in  1 147  brought  out  King  Louis  of  France  and  the  Ger- 
man Emperor  Conrad.  Defeat  and  disaster  met  them.  When 
Saladin  took  Jerusalem  in  1187,  it  must  be  said  to  his  credit 
that  the  barbarities  exhibited  by  the  Christians  on  their  entry 
were  not  repeated  by  the  Mohammedans,  and  he  even  paid  the 


578  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ransom  of  many  of  the  captives,  after  allowing  the  soldiers  to 
march  away. 

Subsequent  crusades  were  barren  of  substantial  results,  be- 
yond the  misery  they  caused  and  their  continued  educational 
influence.  Louis  IX  engaged  in  a  disastrous  expedition  in 
1248,  spending  the  six  following  years  in  Egypt  and  Syria, 
only  to  suffer  defeat  and  fall  a  prisoner  in  the  hands  of  the 
enemy.  After  paying  a  heavy  ransom  and  returning  to  France 
he  lost  his  life  in  an  attack  on  Tunis.  Louis  is  extolled  as  a 
model  prince  and  a  real  lover  oif  truth  and  justice.  During 
the  years  of  peace  he  did  much  to  advance  the  welfare  of  his 
subjects.  One  of  the  greatest  evils  of  the  feudal  system  was 
the  exercise  of  judicial  power  by  the  baron  without  right  of 
appeal,  no  matter  how  great  the  disregard  of  the  law.  Louis 
appointed  itinerant  judges  and  established  courts  superior  to 
those  of  the  feudal  lords,  gave  a  right  of  appeal  in  the  last 
resort  to  himself  and  made  a  great  law  court  of  his  parlia- 
ment. He  restricted  feudal  warfare  among  the  barons,  and 
issued  a  code  of  laws  known  as  the  ''establishments  of  Saint 
Louis."  Though  a  despotic  sovereign,  he  sought  to  rule  by 
fixed  principles,  which  are  generally  conducive  to  order.  In 
his  decisions  he  was  governed  by  what  he  regarded  as  the  law, 
rather  than  by  caprice  or  personal  considerations. 

The  extreme  of  vice  and  cruelty  which  excessive  religious 
zeal  may  attain  was  exhibited  in  the  crusade  against  the  Albi- 
gensians.  Their  crime  was  that  by  reason  of  the  admixture  of 
descendants  of  Greeks,  Romans,  Jews  and  Gauls  with  Goths, 
Arabs  and  traders  from  the  Mediterranean  ports,  the  people 
had  more  of  culture  and  refinement  and  more  breadth  of 
knowledge  and  liberality  of  sentiment  than  the  more  ignorant 
people  of  the  north.  This  necessarily  tended  to  a  perception  of 
the  narrowness  and  bigotry  of  the  clergy  and  to  a  questioning 
of  the  authority  otf  the  priesthood.  That  suppositious  crime, 
heresy,  developed  under  such  conditions.  The  result  was 
that  a  crusade  was  preached  with  the  sanction  of  the  pope 
against  the  Albigensians,  and  a  vast  army  was  gathered,  not 
only  from  other  parts  of  France,  but  also  from  Germany,  and 
for  fifteen  years  from  1208  to  1223  one  of  the  most  cruel 


FRANCE  579 

wars  and  persecutions  of  history  was  waged  by  the  orthodox 
Christians  against  other  more  humane  and  enhghtened  Chris- 
tians. Though  the  pretext  for  this  cruelty  was  rehgion  and 
the  good  of  human  souls,  the  power  of  the  church  was  at 
stake.  The  great  religious  corporation,  of  which  the  pope  was 
the  head,  was  quite  as  jealous  of  its  temporal  ascendency,  of 
its  revenues  and  its  supervision  over  temporal  rulers,  as  of 
mere  matters  of  belief.  Bishoprics  had  in  many  places  come 
to  be  treated  as  inheritances,  to  be  disposed  of  by  will  or  other- 
wise in  accordance  with  the  wish  of  the  incumbent.  The 
period  of  feudal  discord  following  the  breaking  up  of  the 
empire  of  Charlemagne  had  been  auspicious  for  the  extension 
of  the  power  of  the  church,  the  crusades  had  inspired  a  feeling 
of  unity  among  the  Christians,  and  made  the  Pope,  as  the  head 
of  the  church,  by  far  the  most  conspicuous  figure  in  Europe. 

During  the  twelfth  century  France  was  split  into  many  states 
with  ever  changing  combinations,  due  to  wars,  marriages  and 
alliances.  The  establishment  of  the  Norman  dynasty  in  Eng- 
land induced  a  succession  of  wars  in  support  of  the  claims  of 
English  kings  to  French  dominions.  The  growth  of  towns 
and  the  incipient  stages  of  the  development  of  burghers'  rights 
had  already  begun  in  the  reign  of  Philip  Augustus,  1180  to 
1223.  He  continued  the  privileges  of  forty-one  communes, 
which  had  been  granted  charters  before  his  time,  and  estab- 
lished forty-three  new  ones.  The  extremely  rudimentary  char- 
acter of  the  government  of  Paris  in  the  time  of  St.  Louis  is 
shown  by  the  fact  that  the  same  person  was  prefect,  mayor 
and  receiver  general  under  the  name  of  provost,  and  that  the 
office  was  a  purchasable  one.  Louis  put  an  end  to  the  sale  of 
the  office  and  separated  it  from  the  receivership  of  the  royal 
domains.  He  also  provided  registers  for  the  rules  of  the 
various  organizations  of  artisans,  the  masters  of  which  ap- 
peared before  the  provost  to  declare  and  have  recorded  their 
regulations.  Paris,  though  the  French  king's  capital,  was  not 
to  be  compared  in  importance  as  a  manufacturing  center  to 
the  Flemish  towns,  which  by  the  thirteenth  century  had  taken 
the  lead  in  the  manufacture  of  woolen  stuffs,  and  were  or- 
ganized on  republican  principles,  leagued  together,  with  agen- 
cies established  in  London  and  elsewhere.    Their  trade  by  the 


S8o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

year  1300  had  become  very  extensive,  and  Flanders  was  the 
richest  and  most  populous  country  in  Europe.  In  that  year 
Philip  IV  added  it  to  France,  but  in  1302  met  a  crushing  de- 
feat at  the  hands  of  the  revolted  burghers. 

It  was  in  the  reign  of  Philip  IV  Le  Bel,  that  Pope  Boniface 
boldly  claimed  that  the  spiritual  power  included  the  temporal,, 
and  hence  that  the  king  was  under  his  guidance.  This  Philip 
denied,  and  a  fierce  controversy  ensued  which  continued  till 
the  death  of  Boniface.  Clement  V  was  elected  through  the 
active  efforts  of  Philip  after  the  brief  term  of  Benedict  XI,, 
and  rewarded  the  French  king  for  his  aid.  He  established  his 
residence  at  Avignon,  where  the  Holy  See  was  maintained  for 
the  next  thirty  years,  largely  under  the  domination  of  the 
French  kings.  Philip  also  attacked  the  order  of  Knights 
Templar,  caused  the  persecution  and  burning  of  their  grand 
master  and  many  leading  men  of  the  order,  and  confiscated 
their  treasures.  Under  his  reign  the  kingly  power  was  much 
increased  at  the  expense  of  the  pope,  the  orders  and  the  feudal 
lords.  In  13 15  Louis  the  Quarreler  issued  the  following  edict: 
"Whereas,  according  to  natural  right,  every  one  should  be 
born  free,  and  whereas,  by  certain  customs  which  from  long 
age  have  been  introduced  into  and  preserved  to  this  day  in  our 
kingdom,  many  persons  amongst  our  common  people  have 
fallen  into  bonds  of  slavery,  which  much  displeaseth  us,  we 
considering  that  our  kingdom  is  called  and  named  the  kingdom 
of  the  Free  {Franks),  and  willing  that  the  matter  should 
accord  in  verity  with  the  name,  .  .  .  have  by  our  grand  coun- 
cil decreed  and  do  decree  that  generally  throughout  our  whole 
kingdom,  such  serfdom  be  reduced  to  freedom  on  fair  and 
suitable  conditions,  .  .  .  and  we  will  likewise  that  all  other 
lords  who  have  bodymen  (or  serfs)  do  take  example  by  us  to 
bring  them  to  freedom." 

It  will  be  noted  that  this  applied  only  to  the  seris  of  the 
crown  and  did  not  have  the  effect  of  liberating  those  held 
by  other  feudal  lords.  On  his  death  he  left  only  daughters.  A 
posthumous  son  lived  only  -five  days.  His  brother  Philip  the 
Long  then  convened  a  parliament,  at  which  it  was  settled  and 
ever  after  remained  the  law,  that  "the  laws  and  customs  in- 
violably observed  among  the  Franks  excluded  daughters  from 


FRANXE  581 

the  crown."    This  rule  exc hided  the  claims  of  Edward  III  of 
England,  which  were  derived  from  his  mother. 

The  development  of  the  towns  of  France  and  the  influence 
exerted  by  them  on  the  governmental  affairs  differs  in  some 
respects  from  that  of  other  countries.  No  town  at  any  time 
prior  to  the  revolution  of  1789  occupied  a  commanding  posi- 
tion as  a  municipality.  During  the  worst  period  of  feudal 
anarchy  the  knights  and  their  retainers  were,  to  a  great  ex- 
tent, robbers  and  non-producers.  Such  industries  as  their  im- 
mediate .followers  pursued  were  mainly  connected  with  the 
land.  Throughout  France,  and  especially  in  the  southern 
provinces,  considerable  towns  survived  the  inundations  of  the 
barbarians  and  preserved  some  of  the  ancient  Roman  forms 
of  municipal  government.  When  the  bond  which  tied  Charle- 
magne's great  empire  together  became  so  weak  that  the  king 
looked  only  to  his  feudal  vassals  for  the  government  of  their 
territories  in  accordance  with  feudal  customs,  it  appeared  that 
these  were  not  adapted  to  the  needs  of  manufacturers  and 
traders.  On  the  contrary  the  feudal  baron,  who  did  not  work 
and  who  made  war  his  business,  became  a  robber  of  the  more 
industrious  townspeople.  His  extortions  were  either  by  peace- 
able exactions  in  some  form  of  taxation  or  by  forcible  taking 
of  property  by  himself  or  his  retainers.  In  a  large  number  of 
the  principal  towns  the  governing  power  was  in  the  hands  of 
bishops  or  other  church  officials,  who  ruled  often  in  a  manner 
similar  to  that  of  the  lay  nobility.  The  wrongs  suffered  by  the 
town  folks  at  the  hands  of  their  local  rulers  led  to  concert  of 
action  on  the  part  of  the  burghers  for  self-protection  and  to 
conflicts  with  the  local  barons.  The  outcome  of  these  con- 
flicts was  some  sort  of  an  agreement  as  to  the  terms  on  which 
the  burghers  might  live,  and  many  of  these  agreements  took 
the  form  of  charters  granted  by  the  lord  or  bishop,  and  some 
of  them  were  submitted  to  and  approved  by  the  king.  They 
related  solely  to  local  affairs,  and  no  general  combination  of 
the  scattered  towns  for  their  common  protection  was  effected, 
which  could  at  any  time  be  called  national.  Some  of  the 
southern  towns  united  for  mutual  protection,  and  the  Flemish 
towns  formed  real  republican  leagues,  but  the  towns  in  the 
interior  struggled  on  separately.     Such  rights  of  local  govern- 


582  EVOLUTIOX  OF  GOVERNMENTS  AND  LAWS 

ment  as  they  gained  were  assured  only  by  their  written  char- 
ters, and  observed  or  not  at  the  pleasure  or  according;  to  the 
moral  character  of  the  lord.  For  violation  of  their  rights  the 
only  appeal  against  their  oppressors  was  to  the  king.  Such 
appeals  were  often  made,  but  the  relief  obtained  depended  on 
the  character  of  the  king.  The  townsmen  looked  mainly  to 
peaceful  industry  for  their  livelihood,  while  the  knights  de- 
spised all  useful  employments  and  made  war  and  destruction 
their  chief  business.  A  natural  law  of  the  utmost  importance, 
but  often  overlooked  gave  increase  of  numbers  and  of  wealth 
to  the  peaceful  and  industrious  burghers.  They  were  often 
plundered  and  many  of  them  killed  by  the  warlike  barons  and 
their  retainers.  They  were  themselves  often  contentious,  tur- 
bulent and  bloody,  yet  their  general  purpose  was  to  labor  and 
produce  useful  things.  Theirs  was  a  purpose  superior  morally 
and  economically  to  that  of  the  Feudal  aristocracy,  and  it 
brought  to  them  the  reward  of  increased  numbers  and  im- 
portance. In  process  of  time  the  kings  found  that  the  burgh- 
ers could  supply  them  with  money  and  even  with  fighting  men, 
and  the  strife  and  jealousy  between  the  feudal  lords  and  the 
burghers  made  it  possible  for  the  king  by  uniting  with  the 
burghers  to  maintain  his  authority  and  increase  his  power  over 
both.  At  first  the  charters  of  the  communes  gave  them  power 
only  to  regulate  their  local  affairs  by  their  own  officers  separ- 
ately and  in  their  own  way,  but  under  St.  Louis  and  Philip 
le  Bel  general  regulations  applicable  to  all  the  communes  were 
prescribed.  Following  this  came  a  recognition  of  the  right  of 
the  towns  through  their  representatives  to  be  consulted  in 
matters  affecting  the  general  welfare  of  the  kingdom,  and  in 
1 302-1 308  and  13 14  Philip  le  Bel  convoked  the  States-General 
and  summoned  thereto  "the  deputies  oif  the  good  towns."  In 
1338  the  states  obtained  from  Philip  of  Valois  assent  to  the 
declaration,  that  "there  should  be  no  power  to  impose  or  levy 
talliage  in  France,  if  urgent  necessity  did  not  require  it,  and 
then  only  by  grant  of  the  people  of  the  estates." 

Thenceforth  there  was  a  connection  between  the  towns  and 
the  central  authority  by  representation  in  the  States-General, 
when  convened,  and  by  the  direct  exercise  of  the  king's  author- 
ity in  the  government  of  the  towns,  but  there  was  no  clear 


FRANCE  583 

recognition  of  the  rights  of  the  burghers  nor  definite  check  on 
the  tyranny  of  either  king  or  feudal  lord.  By  the  close  of  the 
thirteenth  century  the  feudal  system  had,  as  its  natural  pro- 
ducts, sprinkled  the  country  over  with  lords'  castles  with  heavy 
walls  and  moats  to  resist  attacks,  and  walled  towns.  Feudal 
wars  and  the  lack  of  any  general  authority  capable  af  afford- 
ing protection  to  the  weak  made  it  necessary  for  the  burghers 
to  defend  their  towns  and  the  knights  their  castles.  In  1329 
Edward  III  of  England,  being  thereto  summoned,  paid  hom- 
age to  Philip  of  Valois,  as  king  of  France,  for  the  duchy  of 
Aquitaine,  but  in  1337  Edward  himself  laid  claim,  though 
without  any  very  plausible  ground,  to  the  crown  of  France, 
and  commenced  what  is  sometimes  called  the  hundred  years' 
war.  It  was  cruel  and  destructive  and  unproductive  of  benefit 
to  either  combatant.  Edward  courted  the  aid  of  the  Flemish 
towns  and  alliances  with  disaffected  nobles,  from  some  of 
whom  he  claimed  and  received  homage  as  king  of  France. 
Opposing  claims  of  different  vassals  to  the  duchy  of  Brittany 
led  to  the  king  of  France  supporting  one  and  the  king  of  Eng- 
land another,  and,  though  a  truce  had  been  agreed  on  between 
the  two  kings,  they  fought  in  Brittany  for  their  vassals, 
though  still  claiming  to  observe  the  truce.  This  was  spoken 
of  as  the  war  of  the  three  Joans,  owing  to  the  leading  parts 
taken  by  wives  of  the  claimants  to  the  dukedom,  and  exhibited 
the  mixture  of  fierceness  and  barbarity  with  occasional  bursts 
of  generosity  and  virtue  so  characteristic  of  feudal  society. 
From  1347  to  1349  the  "black  death"  took  off  a  great  part  of 
the  population.  In  the  early  period  of  the  hundreds  years'  war 
the  English  gained  advantages.  At  Crecy  the  French  were 
defeated  and  again  at  Poitiers,  where  on  Sept.  19,  1356,  John  II 
of  France  and  his  young  son  Philip  were  taken  prisoners  by 
the  English  under  the  prince  o.f  Wales.  They  were  treated  as 
distinguished  guests,  though  the  arbitrary  execution  of  prison- 
ers or  obnoxious  subjects  was  a  frequent  occurrence  under 
both  sovereigns.  Before  this  unfortunate  battle,  in  1355,  John 
had  found  it  necessary  to  convoke  the  States-General,  from 
which  he  received  liberal  grants  of  supplies  and  the  levy  of 
new  forms  of  taxes  that  occasioned  great  discontent.  After 
the  battle  of  Poitiers  Tohn*s  eldest  son  Charles  assumed  the 


584  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

direction  of  affairs  under  the  title  of  lieutenant  of  the  king  and 
summoned  the  States-General  to  meet  at  Paris  on  Oct.  15. 
The  clergy  appeared  in  full  force  and  about  one  hundred  depu- 
ties from  the  towns,  but  so  many  of  the  nobility  had  fallen  in 
the  battle  that  the  representation  of  that  order  was  very  light. 
Each  order  at  first  held  separate  sessions,  but  they  soon  chose 
commissioners  from  each  to  sit  together.  These  numbered 
eighty  in  all.  Charles,  who  is  styled  the  Dauphin,  appointed 
some  of  his  officers  to  be  present  at  their  meetings,  but  they 
refused  to  proceed  in  their  presence  and  the  officers  thereupon 
withdrew.  After  a  few  days  they  made  their  demands  on 
Charles  ''that  he  should  deprive  of  their  offices  such  of  the 
king's  councillors  as  they  should  point  out,  have  them  arrested, 
and  confiscate  all  their  property."  Twenty-two  men,  including 
the  chancellor,  president  of  parliament,  king's  steward  and 
some  officers  of  this  household,  were  named.  They  also  de- 
manded that  deputies  called  reformers  should  traverse  the 
provinces  as  a  check  on  the  royal  officials,  and  that  twenty- 
eight  delegates  chosen  from  the  three  orders,  ifour  prelates, 
twelve  knights  and  twelve  burgesses  should  be  constantly 
placed  near  the  king's  person  "with  power  to  do  and  order 
everything  in  the  kingdom  just  like  the  king  himself,  as  well 
for  the  purpose  of  appointing  and  removing  public  officers  as 
for  other  matters."  The  Dauphin  asked  time  to  consider  and 
left  Paris  for  Metz.  During  his  absence  the  populace  of  Paris 
under  the  lead  of  Stephen  Marcial  became  exasperated  at  an 
order  for  the  debasement  of  the  coin  and  compelled  its  sus- 
pension till  the  Dauphin's  return,  when  they  again  rose  and 
forced  him  to  accede  to  the  principal  demands  made  by  the 
States-General,  and  they  were  authorized  to  meet  when  they 
pleased.  At  a  subsequent  session  of  the  States-General  in 
March,  1357,  a  grand  ordinance  in  sixty-one  articles,  enumer- 
ating the  grievances  complained  of  and  prescribing  redress  for 
them,  was  drawn  up,  and  a  grand  commission  of  thirty-six 
was  appointed  to  meet  together  at  Paris  for  ordering  the  af- 
fairs of  the  kingdom,  whose  orders  all  classes  must  obey.  A 
period  of  turbulence  followed,  during  which  the  populace  of 
Paris  took  a  leading  part  in  public  affairs.  In  February,  1558, 
under  the  lead  of  Marcial  they  entered  the  palace  and  killed  the 


FRANCE  585 

marshals  of  Champagne  and  Normandy  in  the  presence  of  the 
Dauphin.  Marcial  soon  became  dictator  at  Paris,  and  the 
Dauphin  escaped  to  Senhs.  He  soon  after  convoked  the 
States-General  to  meet  at  Compiegne.  In  response  to  his  call 
the  nobles  and  partisans  of  the  murdered  marshals  turned  out 
and  demanded  the  execution  of  the  murderers.  While  matters 
stood  in  this  attitude  there  was  an  uprising  of  the  peasants  in 
Normandy  and  other  provinces.  They  took  and  demolished 
many  castles  and  killed  many  noblemen  and  their  families. 
Marcial  sent  out  a  body  af  three  hundred  burghers  to  aid  in 
taking  the  castle  of  Ermenonville,  which  was  demolished  and 
all  the  nobility  in  it  put  to  death.  The  nobility  under  the  lead 
of  the  Dauphin  soon  made  common  cause  against  the  peasants, 
who  were  overcome  and  great  numbers  of  them  massacred. 
Marcial,  as  a  last  desperate  expedient  to  save  himself,  called 
in  the  aid  of  the  English  and  admitted  a  body  of  them  into  the 
city,  but  a  quarrel  broke  out  between  them  and  the  Parisians, 
in  which  a  number  of  the  English  were  killed.  On  July  31, 
1358,  while  attempting  to  open  the  gates  of  the  city  to  admit 
the  king  of  Navarre  and  the  English,  Marcial  was  killed  by  the 
Parisians.  The  crude  attempt  of  Marcial  and  his  coadjutators 
to  curb  the  tyranny  of  the  king  and  nobility  served  only  to 
show  the  lack  of  capacity  for  organization  and  concerted  ac- 
tion on  the  part  of  the  burghers  and  peasants.  They  were 
utterly  wanting  in  regard  for  the  rights  of  others  and  that 
self-restraint  which  is  so  essential  to  popular  government. 
The  authority  of  kings  and  feudal  despots  may  be  supported 
and  maintained  over  an  ignorant  and  debased  multitude  mere- 
ly by  armed  force  and  regardless  of  mercy  or  justice,  but, 
as  Montesquieu  ably  points  out,  popular  government  can  only 
rest  securely  on  justice  to  each  and  to  all.  Marcial  and  Callet, 
the  leader  of  the  peasants,  started  out  in  a  just  cause,  but  soon 
adopted  the  methods  of  the  authors  of  the  wrongs  of  which 
the  people  complained.  If  they  cotild  have  restrained  their 
own  passions  and  those  of  their  followers,  they  might  have 
accomplished  great  good,  but  the  people  of  that  age  were  not 
prepared  for  popular  government.  After  Marcial's  death,  on 
the  return  of  the  Dauphin,  the  popular  leaders  were  taken  and 
summarily  executed. 


586  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

In  the  fall  of  1359  Edward  invaded  France.  After  roaming 
about  and  pillaging  the  open  country  without  laying  seige  to 
any  of  the  strong  towns  he  concluded  the  treaty  Bretigny, 
May  1360,  with  the  Dauphin,  by  which  Aquitaine  with  en- 
larged boundaries  was  acknowledged  as  an  English  province 
freed  from  French  sovereignty,  and  a  ransom  of  3,000,000 
crowns  was  to  be  paid  for  King  John's  release.  War  over  the 
succession  to  the  throne  of  Castile  was  participated  in  by  the 
French  on  one  side  and  the  English  on  the  other,  and  in  1369 
war  was  again  declared  by  Charles  V  of  France,  which  result- 
ed in  the  recovery  by  the  French  of  most  of  the  territory  ceded 
by  the  treaty  of  Bretigny  without  any  decisive  battles. 
Charles  V  died  in  1380  and  was  succeeded  by  his  son  Charles 
VI  then  only  twelve  years  old.  In  his  reign  civil  discord  as 
well  as  'foreign  war  harassed  and  impoverished  the  country. 
The  Burgundian  and  Orleans  factions,  with  the  foreign  and 
domestic  alliances  peculiar  to  that  age,  kept  up  constant  strife. 
The  Flemish  cities,  in  spite  of  their  wars,  grew  and  preserved 
much  of  their  local  freedom.  In  141 5  the  famous  battle  of 
Azincourt  was  fought,  in  which  the  French  sustained  a  crush- 
ing defeat  and  the  loss  of  a  great  host  of  the  nobility.  The 
invention  of  gunpowder  and  changes  in  the  military  system, 
from  the  armored  knights  fighting  on  horseback  without  order 
or  discipline,  all  serving  for  limited  periods  without  pay  in 
accordance  with  'feudal  law,  was  gradually  changing  into  a 
more  orderly  system  of  paid  and  systematically  organized 
troops.  Gunpowder  deprived  the  armored  knight  of  most  of 
his  superiority  over  the  unprotected  and  poorly  armed  foot 
soldier.  The  war  between  English  and  French  dragged  on 
under  Charles  VII,  a  very  weak  prince.  The  Burgundians 
aided  the  English.  French  fortunes  reached  a  very  low  ebb 
till  during  the  siege  of  Orleans  by  the  English  Joan  of  Arc 
appeared  and  with  a  magnetic  force  unique  in  history  roused 
the  spirit  of  the  French  and  led  them  to  victory.  Though 
Edward  III  might  treat  a  worthless  prince  like  King  John, 
while  a  prisoner,  with  such  marked  consideration  as  to  make 
him  really  enjoy  his  captivity,  when  the  pure-minded  and  lofty 
souled  Joan  fell  into  his  hands,  they  burnt  her  as  a  witch  and 


FRANCE  587 

heretic  in  1431.  With  the  withdrawal  of  the  Burgundians 
from  the  English  side  the  fortunes  of  the  latter  declined,  and 
they  were  forced  to  withdiaw  from  the  interior.  The  long 
period  of  internal  discord  and  English  dominion  in  France 
drew  toward  its  close.  In  1439  the  States-General  were  con- 
vened by  Charles  VII  and  a  start  was  made  toward  the  organ- 
ization of  a  standing  army  and  a  regular  system  of  taxation 
for  its  support.  This  aroused  the  hostility  of  the  nobles,  but 
Charles  persisted  and  organized  fifteen  companies  of  one  hun- 
dred lancers  each  which  he  set  to  work  clearing  the  country 
of  the  robbers  with  which  it  was  infested.  In  1453  the  Eng- 
lish were  driven  from  all  their  possessions  except  Calais, 
Havre  and  Guines  Castle.  The  long  struggle  had  tended  to 
develop  a  national  sentiment  in  France,  and  all  the  brilliant 
campaigns  of  the  English  were  barren  of  profit. 

After  the  close  of  the  reign  of  Louis  XI  France  entered  on 
a  career  of  contests  and  diplomacy  with  foreign  states,  with 
the  details  of  which  we  are  not  concerned.  Although  the 
administrative  system  had  not  reached  its  full  development, 
the  structure  of  the  French  monarchy  was  already  settled. 
The  king  was  the  state,  and  his  authority  was  backed  by  mili- 
tary power.  Under  Charles  VIII  began  those  Italian  wars, 
based  on  a  claim  to  Naples  and  Sicily,  which  were  productive 
of  so  much  bloodshed  and  so  little  advantage.  From  this  time 
forward  the  field  of  military  operations  widens  and  France 
plays  a  leading  part  among  the  nations  of  Europe.  The  dis- 
tinct progress  accomplished  was  the  formation  of  a  compact 
state,  developing  an  orderly  though  not  a  just  system  of  in- 
tercourse with  and  knowledge  of  the  other  states  of  Europe, 
under  which  industry  increased  and  knowledge  was  sought. 
Not  to  a  changing  form  or  theory  of  government  during  this 
period,  but  to  other  causes,  must  we  look  for  the  signs  of  prog- 
ress and  the  growth  of  those  sentiments  of  liberty  and  equality 
which  blazed  forth  in  the  eighteenth  century.  The  feudal  sys- 
tem was  the  rule  of  local  petty  tyrants,  who  had  no  respect  for, 
nor  sympathy  with,  any  class  of  laboring  or  trading  people. 
The  stratification  of  society  was  into  the  various  feudal  orders, 
with  the  serfs  at  the  base  and  the  king  at  the  head,  a  ruler 


588  EVOLUTION  OF  GOVERNMENTS  AND  L.\WS 

whom  his  greatest  subjects  defied,  and  the  churchmen  pro- 
fessing brotherhood,  but  rigorously  ruled  by  church  officials. 
The  enterprises  carried  on  by  feudal  barons  led  to  no  discus- 
sion of  the  principles  of  social  organization.  The  establish- 
ment of  the  power  of  the  king  on  a  more  firm  basis  and  the 
opening  of  the  era  of  wars  between  great  states  had  taken 
place  by  the  reign  of  Francis  I,  1524  to  1547.  Then  came 
that  revolution  which  affected  Europe  and  especially  France  so 
profoundly,  the  religious  reformation.  For  centuries  the  Pope 
and  catholic  clergy  had  enjoyed  not  merely  the  distinction  of 
rank  in  the  religious  world,  but  great  temporal  power  and  vast 
revenues.  Fondness  of  display  and  love  of  power  had  become 
quite  as  characteristic  of  the  popes  and  prelates  as  of  the 
temporal  sovereigns.  The  creed  was  tenaciously  clung  to,  but 
the  moral  teachings  of  Christ  were  often  forgotten.  The  sale 
of  indulgences  to  do  wrong  shocked  the  moral  sense  of  great 
numbers,  in  an  age  when  great  crimes  were  common.  The 
state  of  society  in  France  in  the  sixteenth  century  was  pecu- 
liar. The  government  was  in  a  stage  of  transition  from  the 
anarchy  of  feudalism  to  a  kingly  despotism.  The  law  was  a 
mixture  of  the  Salic  law  of  the  Franks,  the  feudal  principles 
and  the  Roman  civil  law.  Religion  was  no  longer  the  ritual  of 
the  church,  but  a  faith  for  which  men  and  women  unhesi- 
tatingly gave  up  all  earthly  possessions  and  even  life  itself. 
Contemporaneously  with  the  opening  of  the  new  world  to 
view  and  the  discovery  of  a  water  route  to  India  and  the 
east,  there  was  an  awakening  to  new  conceptions  of  all  things. 
The  desire  to  discover  new  truths,  to  look  deeper  into  nature 
and  know  more  of  man  and  of  the  moral  obligations  resting 
on  him,  was  growing.  This  desire  prompted  inquiry,  which 
at  the  same  time  produced  turmoil  and  advancement.  Though 
without  any  system  of  public  schools  for  the  multitude,  France 
then  occupied  a  leading  position  in  its  educational  institu- 
tions. The  great  University  of  Paris,  which  had  its  begin- 
nings in  the  twelfth  century,  had  developed  into  a  large 
institution,  where  many  branches  of  learning  were  taught. 
Other  universities  had  also  been  established  at  Montpelier, 
Toulouse,  Orleans,  Angers,  Avignon,  Cahors  and  Grenoble, 


FRA.XCE  589 

some  of  which  were  in  a  flourishing  condition.    The  civil  law, 
medicine  and  religion  were  taught.     PYom  all  these  schools 
some  light  was  diffused  thrdugh  the  intellectual  darkness,  and 
most  important  of  all,  a  growing  appetite  for  truth  and  an 
increasing  perception  of  the  vices  and  immoralities  of  the  age. 
The   printing  press   had  come   to  give   its   powerful   aid   in 
spreading  information.     While  the  high  clergy  were  often 
intent  only  on  their  own  personal  aggrandizement,  there  were 
many  students  who  in  reading  the  scriptures  discovered,  not 
merely  the  alluring  promise  of  bliss  in  a  life  to  come,  but  also 
the  practical  lessons  of  morality  and  the  sublime  virtue  of 
the  golden  rule  as  a  means  of  improving  man's  condition  here 
on  earth.     The  sixteenth  century  exhibits,  often  in  the  same 
individual  as  well  as  in  the  contentions  of  parties  and  factions, 
the  struggle  between  the  old  savagery  and  barbarism  in  their 
most  vicious  forms,  and  conscience  newly  awakened  to  the 
command  to  love  your  enemies.     The  religious  struggle  in 
France  was  not  between  different  states  or  sections  of  the 
country,   but  between   neighbors.      Men   either   followed   the 
path  of  the  reformation  or  adhered  to  the  dogmas  and  the 
mastery  of  the  established  church,  according  to  their  mental 
bias  and  surrounding  influences.     It  is  difficult  in  this  age  to 
comprehend  the  feelings  of  Protestants  and  Catholics  in  those 
times.     Protestants  were  appalled  at  the  immoralities  of  the 
church  and  believed  that  nothing  but  eternal  damnation  could 
l3e  meted  out  to  those,  who  under  the  guise  of  religion  were 
guilty  of  so  many  misdeeds.     Catholics  felt  that  Protestants 
were  seeking  to  tear  down  that  church  to  which  they  looked 
for  protection  and  safe  passage  into  a  life  of  bliss  to  come. 
Generation  after  generation  had  lived  and  died  in  blissful 
confidence  in  the  ability  of  the  priest  to  pass  the  dying  soul 
safely  through   purgatory   into   heaven,   and  the   belief   that 
without  the  aid  of  the  church  man  was  without  hope.    Deadly 
strife   always   develops   hardness   and   cruelty,   but   religious 
wars  and  persecutions  are  always  more  cruel  and  unrelenting 
than  others. 

During  the  reign  of  Francis  I  there  were  eighty-one  exe- 
cutions  for  heresy  in  accordance  with  judicial  decrees.     In 


590  EVOLUTIOxN  OF  GOVERNMENTS  AND  LAWS 

1545  a  great  number  of  Vaudians,  estimated  at  3,000,  were 
ruthlessly  massacred  because  of  their  religious  opinions. 
During  the  twelve  years  reign  of  Henry  II  there  were  ninety- 
seven  convictions  and  executions  for  heresy.  Though  in  some 
cases  the  proceedings  were  very  summary  and  execution  fol- 
lowed arrest  quickly,  in  most  the  proceedings  were  deliberate^ 
and  it  cannot  be  doubted  that  many  people  believed  that 
heresy  was  a  crime  meriting  death.  The  study  of  the  law 
had  made  such  progress  that  the  lawyers  were  already  an  im- 
portant factor  in  the  state.  The  highest  court  was  the  parlia- 
ment of  Paris,  which  not  only  exercised  judicial  functions, 
but  was  the  medium  through  which  all  edicts  of  the  King  or 
Pope  having  the  efifect  of  laws  were  registered.  Parliament 
itself  was  not  a  law-making  power,  but  it  sometimes  inter- 
posed obstacles  to  obnoxious  enactments  by  refusing  to  regis- 
ter them.  The  kings  overcame  the  difficulty  by  causing  regis- 
tration to  be  made  without  the  sanction  of  Parliament,  but 
when  in  1557  the  papal  bull  was  issued  establishing  the  Inqui- 
sition in  France,  the  Parliament  refused  to  register  it.  In 
1559  this  Parliament  was  composed  of  one  hundred  and  thirty 
members  and  in  1602  when  Biron  was  condemned  one  hun- 
dred and  twenty-seven  voted  for  the  conviction.  The  religious 
struggle  attained  its  most  fierce  manifestation  in  the  Massacre 
of  St.  Bartholomews  Eve  on  Aug.  24,  1572,  when  the  Protes- 
tants in  great  numbers  were  butchered  by  the  order  of  Charles 
IX.  The  number  is  variously  estimated  from  10,000  to  100,- 
000.  It  was  the  purpose  of  Charles  to  exterminate  the 
Huguenots  at  one  stroke  and  thus  end  the  religious  strife,  but 
in  this  he  signally  failed.  The  moral  sense  of  the  Catholics 
was  violently  shocked,  and  all  Christendom  condemned  in 
unmeasured  terms  the  bloody  butchery.  The  religious  strug- 
gle continued  throughout  the  reign  of  Charles  IX,  which  ended 
with  his  death  in  1574,  c\nd  of  his  successor  Henry  III,  1574 
to  1589.  To  the  influence  of  Catharine  de  Medici,  the  Italian 
queen  mother,  was  charged  many  of  the  evils  with  which  the 
state  was  afflicted.  In  1575  the  Holy  League,  which  had  been 
first  conceived  in  1562,  came  into  prominence,  and  on  the 
other  side  the  Protestants  were  not  wanting  in  numbers  or 


FRANCE  591 

leadership.  At  Paris  the  CathoHc  League  partitioned  the  city 
into  five  districts  with  a  head  man  ifor  each,  who  soon  added 
to  their  number  eleven  others.  This  formed  the  committee  of 
sixteen,  which  played  an  important  part  in  the  religious  war. 
In  1588,  when  Henry  III  undertook  to  garrison  the  city,  this 
committee,  under  the  leadership  of  the  Duke  of  Guise  and 
backed  by  the  populace,  barricaded  the  streets  of  Paris  and 
caused  the  king  to  seek  safety  in  flight.  On  Oct.  6,  1588,  the 
States-General,  composed  of  one  hundred  and  eighty  nobles, 
one  hundred  and  thirty- four  clergymen  and  one  hundred  and 
ninety-one  members  of  the  third  estate,  were  convoked  at 
Blois.  Nothing  of  importance  was  accomplished  by  the  ses- 
sion, which  ended  Jan.  10,  1589.  The  King  caused  the  Duke 
of  Guise  to  be  murdered,  but  the  death  of  the  leader  did  not 
destroy  the  league.  The  Parliament  of  Paris  sided  with  the 
Leaguers,  and  the  parliaments  of  other  chief  cities  did  like- 
wise. The  Duke  of  Mayenne,  who  succeeded  to  the  Catholic 
leadership,  organized  a  council  general  of  the  League,  com- 
posed of  forty  members,  for  the  general  direction  of  its 
affairs.  The  struggle  between  Catholic  and  Protestant  was 
popular  in  character  and  not  merely  the  quarrel  of  leaders. 
The  league  had  its  committee  and  was  backed  by  the  populace 
at  Paris.  The  Protestants  on  the  other  hand  were  asserting 
their  right  to  religious  liberty,  and  in  doing  so  were  forced  to 
deny  the  temporal  power  of  the  king  when  exerted  to  compel 
submission  to  the  established  form  of  worship.  It  was  an 
assertion  of  individual  liberty,  though  without  a  clear  con- 
ception of  the  significance  of  the  claim. 

The  assassination  of  Henry  III  by  a  fanatical  monk  made 
Henry  of  Navarre,  a  Protestant,  heir  to  the  throne.  The 
Catholics  were  still  largely  in  the  majority  and  Henry,  who 
had  been  the  recognized  head  of  the  Protestants,  had  a  diffi- 
cult task  before  him;  but  with  the  force  of  the  sentiment  of 
loyalty  to  the  legitimate  heir  to  the  throne  and  a  wise  policy 
of  toleration  of  religious  differences,  he  accomplished  good 
for  the  state  and  the  substantial  restoration  of  domestic  peace. 
His  principle  of  toleration  was  a  principle  of  liberty  of  con- 
science,   religious    thought    and    expression.      The    edict    of 


592  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Nantes,  which  he  pubUshed  on  April  13,  1598,  was  a  great 
stride  forward,  though  it  did  not  accord  entire  equahty  or 
freedom  in  reHgion.  By  it  the  Protestant  form  of  worship  in 
the  castles  of  the  lords  high  justiciary,  who  numbered  3,500, 
was  allowed,  and  also  in  the  castles  of  simple  noblemen,  pro- 
vided the  number  present  did  not  exceed  thirty.  The  state 
was  charged  with  a  provision  of  165,000  livres  for  salaries 
of  Protestant  ministers,  and  donations  and  legacies  for  their 
support  were  permitted.  The  children  of  Protestants  were 
admitted  to  the  schools  and  universities.  The  Parliament  be- 
ing intensely  Catholic  there  was  great  difficulty  in  obtaining 
justice  by  the  Protestants,  and  a  special  court,  called  the  edict 
chamber,  was  established  for  the  trial  of  causes  in  which  they 
were  interested.  Catholic  judges  could  not  sit  in  this  court, 
except  with  the  consent  of  the  parties.  In  the  Parliaments  of 
Bordeaux,  Toulouse  and  Grenoble,  the  edict  chambers  were 
composed  of  two  presidents,  one  Catholic  and  one  Protestant, 
and  twelve  councillors  equally  divided.  The  Protestants  re- 
tained control  of  the  towns  then  in  their  possession,  number- 
ing great  and  small  about  two  hundred,  and  their  garrisons 
and  fortifications  were  maintained  at  the  public  charge.  After 
his  accession  to  the  throne  Henry  found  it  easier  to  rule  as  a 
Catholic  than  as  a  Protestant,  and  in  1593  became  a  Catholic 
and  was  received  into  the  Church.  He  issued  this  edict  as  a 
Catholic  monarch  for  the  pacification  of  his  kingdom,  and  as 
a  measure  of  justice  to  his  subjects.  Henry  is  also  credited 
with  a  comprehensive  plan  for  the  pacification  of  all  Europe 
by  confederating  all  the  Christian  states,  Catholic,  Luthern 
and  Calvanist,  with  equal  rights.  The  plan  contemplated  in- 
dependence in  local  affairs,  the  care  for  common  interests 
through  central  authority  and  the  pacific  settlement  of  all  dis- 
putes between  states.  The  recent  Hague  conferences  are 
steps  toward  the  realization  of  a  world  wide  union  of  this 
kind.  The  barbarism  of  a  division  of  the  continent  into  so 
many  hostile  camps  must  some  day  be  generally  recognized 
the  simple  remedy  of  efficient  cooperation  and  combination  for 
the  general  good  be  adopted,  and  all  the  vast  armies  which 
now  sap  the  life  of  each  nation  and  periodically  spread  death, 


FRANCE  593 

destruction  and  misery  over  the  land,  be  disbanded  to  aid  in 
promoting  the  general  welfare.  The  curse  of  militarism  may 
be  removed  merely  by  the  extension  to  national  disputes  of  the 
principle  of  the  decision  of  controversies  by  reason  and  the 
judgment  of  disinterested  men,  as  controversies  betv^een  in- 
dividuals and  subdivisions  of  a  state  are  now  settled.  In 
Henry's  foreign  policy  the  principle  of  religious  toleration 
played  an  important  part.  To  check  the  power  of  Austria  he 
allied  Catholic  France  with  Protestant  Germany  and  England 
against  Spain  and  Austria.  Under  his  rule  there  was  a  grow- 
ing respect  for  law  as  well  as  an  increased  measure  of  liberty. 
When  he  became  convinced  that  Biron,  who  had  long  been  a 
favorite  with  him,  plotted  against  his  authority,  instead  of 
directing  his  execution  arbitrarily,  as  Charles  IX  had  com- 
manded that  of  Coligny  and  the  Huguenots  and  Henry  III 
that  of  the  Duke  of  Guise,  he  caused  him  to  be  publicly  tried. 
The  inquiry  lasted  three  weeks,  and  the  one  hundred  and 
twenty-seven  judges  in  the  Parliament  of  Paris  unanimously 
condemned  him.  Doubtless  the  accused  stood  at  great  disad- 
vantage in  a  trial  with  the  king  as  accuser,  and  the  tribunal 
could  hardly  be  called  an  impartial  one,  but  strict  impartiality, 
absolute  freedom  from  all  bias,  is  hardly  to  be  found,  unless 
the  matter  tried  is  of  utter  indifference  to  the  judge.  It  is 
greatly  to  be  regretted  that  in  his  private  morals  Henry  was 
conspicuous  for  weakness  rather  than  strength  of  character, 
yet  in  spite  of  this  blemish  he  stands  out  as  a  truly  great 
public  character,  who  labored  earnestly  and  successfully  to 
protect  the  public  good,  not  only  of  his  own  kingdom  but  of 
all  Europe.  During  the  regency  of  Marie  de  Medici,  widow 
of  Henry  IV,  and  the  reign  of  Louis  XIII,  Richelieu  pro- 
moted the  system  of  absolutism,  which  attained  its  highest 
stage  under  Louis  XIV.  The  power  of  the  feudal  lords  had 
been  waning  for  more  than  a  century.  Under  the  ministry  of 
Richelieu  all  eyes  became  steadily  fixed  on  the  king  as  the 
fountain  of  all  power  in  the  state,  and  the  ambitious  nobles 
were  taught  to  seek  advancement  through  the  favor  of  the 
king,  rather  than  the  power  of  their  armed  retainers.  Though 
Henry  IV  had  had  his  councillors,  no  ministry  with  a  distri- 


594  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

bution  of  well  defined  powers  and  functions  had  been  estab- 
lished. Nor  did  Richelieu  develop  such  a  system.  His  policy- 
was  directed  toward  the  advancement  of  the  kingly  authority 
at  the  expense  o,i  the  nobility,  and  to  the  exercise  of  power 
through  officers  appointed  by  the  king  for  their  fidelity,  rather 
than  their  rank.  The  Parliaments,  of  which  at  the  accession 
of  Richelieu  to  power  there  were  nine  namely  of  Paris,  Toul- 
ouse, Grenoble,  Bordeaux,  Dijon,  Rouen,  Aix,  Rennes  and 
Pau  and  to  which  he  added  Metz,  at  times  manifested  some 
degree  of  independence  and  assumed  powers  to  regulate  tax- 
ation and  give  advice  to  the  king.  In  1641  Louis  XIII  pub- 
lished an  edict  prohibiting  the  Parliaments  from  interference 
in  affairs  of  administration  and  confining  them  strictly  to 
judicial  functions.  Though  there  were  refusals  to  register 
edicts  by  some  of  the  Parliaments,  opposition  was  crushed  and 
the  king's  unrestricted  power  enforced.  There  were,  besides 
the  states  general  of  the  whole  kingdom,  states  provincial  in 
Lauguedoc,  Brittany,  Burgundy,  Provence,  Dauphiny  and 
Pau,  through  which  these  districts  levied  the  taxes  on  them- 
selves. These  states  provincial  were  convoked  by  the  king 
and  varied  in  their  composition  according  to  the  district. 
Richelieu's  policy  was  to  curtail  the  power  of  the  states  and 
take  away  all  restriction  on  the  kings  control  of  his  finances. 
He  established  in  each  province  overseers  of  justice,  police 
and  finance,  chosen  mostly  from  the  burgesses,  into  whose 
hands  the  whole  administration  of  local  affairs  was  committed. 
By  an  edict  of  July  31,  1626,  all  the  old  castles  of  the  great 
nobles  were  demolished,  and  through  these  overseers  the 
powers  of  the  nobility  in  local  affairs  were  effectually  cur- 
tailed. Only  twice  in  his  time  did  Richelieu  convoke  the 
Assembly  of  Notables,  in  1625  and  1626.  On  Feb.  24,  1627, 
the  last  Assembly  separated  and  was  never  again  convoked 
till  the  revolution  of  1789. 

On  the  death  of  Richelieu  another  cardinal,  Mazarin,  an 
Italian,  took  his  place  and,  though  he  encountered  intense 
hostility  and  much  internal  commotion  and  external  war,  he 
died  with  the  full  confidence  of  Louis  XIV  and  as  primier 
wielded  the  actual  power  of  the  king.     On  his  death  in  1661 


FRANCE  595 

Louis  assumed  the  duties  of  his  office  and  notified  his  min- 
isters that  they  were  only  to  act  on  his  command.  In  his 
reign  was  commenced  the  systematic  distribution  of  admin- 
istrative functions,  with  a  secretary  jfor  foreign  affairs,  one 
for  war  and  the  army  and  another  for  finance.  Neither  of 
these  had  independent  authority,  but  all  worked  under  the 
king.  Louis  XIV  had  ideas  of  order  and  method  superior 
to  those  of  his  predecessors.  He  labored  to  gather  informa- 
tion and  to  direct  the  action  of  all  his  officers.  He  was  the 
sole  source  of  authority,  and  in  the  selection  of  his  agents  he 
nought  to  humble  rather  than  elevate  the  great  folks.  The 
nobles  however  still  held  title  to  the  land,  and  through  its 
ownership  were  able  to  grind  the  poor  to  starvation.  Louis 
with  the  aid  of  able  ministers  greatly  curtailed  the  diversion 
of  moneys  collected  as  taxes  into  private  pockets.  By  this 
means  his  revenues  were  increased  and  taxes  lightened.  The 
beginnings  of  the  actual  exercise  of  kingly  power  by  Louis 
contained  much  that  was  good.  He  did  much  to  develop  an 
orderly  government,  with  a  head  laboring  daily  ;for  the  wel- 
fare of  the  state,  as  he  understood  it.  But  Louis  sought  first 
of  all  his  own  aggrandizement.  He  was  lavish  in  the  expendi- 
tures of  his  court,  but  he  built  palaces  ^.nd  public  works  that 
were  both  useful  and  ornamental.  Like  most  despots  how- 
ever, he  sought  to  extend  his  power  over  his  neighbors.  The 
Netherlands,  Germany,  Spain  and  Italy  were  subjected  to  his 
encroachments,  and  no  sooner  had  his  country  begun  to  feel 
the  advantages  of  his  firm  rule  than  he  plunged  it  into  war. 
The  early  period  was  one  of  glory  (so  called),  for  France. 
Her  boundaries  were  advanced,  and  she  took  her  place  as  the 
first  power  in  Europe.  But  however  great  the  successes  in 
battle  the  drain  of  men  and  money  in  great  wars  necessarily 
impoverishes  the  nation,  and  the  later  years  of  the  reign  of 
Louis  were  years  of  misery  among  the  people  and  disaster, 
defeat  and  loss  of  prestige  in  war.  Religious  toleration, 
established  by  the  edict  of  Nantes  and  which  had  done  so 
much  to  pacify  France,  came  to  an  end  in  1685,  when  Louis 
revoked  the  edict  and  drove  out  the  Huguenots,  to  become, 
either  soldiers  in  the  armies  of  his  enemies  or  industrious 


596  EVOLUTION  OF  GOVERNMENTS  AND  LlWVS 

workers,  furnishing  money  and  supplies  to  them.  The  long- 
reign  of  Louis  was  one  of  thoroughly  recognized  right  of  the 
king  to  rule,  freed  from  all  dictation  and  interference  by  the 
aristocracy.  Obedience  to  him  was  considered  the  duty  of 
all.  The  plentitude  of  the  king's  power  and  his  love  of  dis- 
playing it  drew  to  his  court  all  the  rich  and  high  born  of 
the  kingdom.  The  magnificence  of  his  court  was  noted 
throughout  Europe.  Nowhere  else  was  there  such  an  exhi- 
bition of  wealth  and  luxury.  Internal  peace  was  the  marked 
evidence  of  advancing  views  of  social  duty.  Foreign  war  and 
military  glory  still  offered  the  most  alluring  field  for  the  am- 
bitious, yet  the  age  was  one  of  intellectual  awakening  and 
the  great  names  are  not  alone  of  soldiers,  but  of  authors, 
artists,  scientists  and  philosophers.  Though  nothing  like  at- 
tacks on  the  established  system  was  tolerated,  writers  and 
teachers  did  not  fail  to  discover  and  declare  some  of  the  moral 
truths  bearing  on  the  obligations  of  the  ruler  to  the  ruled. 
Priests  taught  virtue  a  little  more  and  persecuted  heresy  far 
less.  The  luxury  and  magnificence  of  the  court,  to  which  all 
the  great  landowners  gathered,  withdrew  from  their  estates 
whatever  advantage  might  have  resulted  in  their  management 
from  the  education  and  intelligence  of  the  owners,  and  left 
them  to  the  care  of  impoverished  peasants.  To  maintain 
great  houses  at  Paris  and  Versailles,  buy  the  gorgeous  and 
expensive  costumes  of  the  time  and  give  costly  banquets,  re- 
quired the  whole  product  of  the  estates.  The  peasants  wha 
did  all  the  work  were  mercilessly  robbed  of  the  fruits  of  their 
toil,  in  order  that  the  butterflies  at  the  palace  might  appear  in 
dazzling  brilliancy.  Order,  obedience  and  law  prevailed,  but 
applied  law  in  its  aggregate  results  meant  monstrous  injustice, 
systematically  and  mercilessly  enforced.  Unfortunately  this 
is  by  far  too  true  of  all  systems  of  human  laws.  The  idle 
favorites,  who  swarmed  about  the  court  fawning  on  the  king 
for  favors,  were  mostly  quite  without  merit.  True  there  were 
some  such  lofty  natures  as  Fenelon,  Pascal,  Bossuet,  Madame 
de  Sevigne,  La  Bruyere,  Moliere,  Corneille,  Racine,  La  Fon- 
taine and  other  thinkers  and  writers,  who  were  more  or  less 
about  the  court,  whose  plantings  in  the  moral  vineyard  have 


FRANCE  597 

borne  good  fruits,  but  the  recipients  of  the  great  bulk  of  royal 
bounty  were  worse  than  mere  idlers.  They  were  conspicuous 
examples  of  the  corruption  of  a  despotic  system,  living  not 
merely  useless,  but  debauched  and  vicious  lives,  not  from  the 
bounty  of  a  rich  king  as  the  historians  usually  state  it,  but 
from  the  fruits  of  the  labors  of  the  needy  poor,  wrung  from 
them  either  by  the  public  tax  gatherers  on  pretense  of  pay- 
ment for  public  service,  or  as  the  share  of  the  produce  be- 
longing to  a  landowner  through  a  most  unjust  legal  theory 
of  ownership  of  the  earth.  Viewed  at  large  the  nation  ex- 
hibited a  brilliant  court,  permeated  with  moral  pestilence,  and 
a  vast  multitude  of  ignorant  and  spiritless  toilers,  who  labored 
and  died  in  misery  and  degradation.  Happiness  had  no 
abiding  place.  At  court  all  was  a  fever  of  hopes  and  fears, 
hanging  on  the  smiles  and  frowns  of  a  king. 

Though  Louis  was  king  till  his  death,  and  though  he  never 
ceased  to  give  personal  attention  to  public  affairs,  the  idea 
contained  in  the  memorable  expression  'T  am  the  state," 
gained  a  constantly  increasing  force  in  his  mind,  till  the  wel- 
fare of  the  people  he  should  have  served  ceased  to  be  a  matter 
of  consideration,  and  France  became  in  his  eyes  but  a  setting 
to  display  his  grandure  and  power.  As  his  life  drew  towards 
its  close  he  witnessed  without  profit  the  necessary  results  of 
his  policy.  The  peasants,  artisans  and  traders  were  impover- 
ished and  reduced  in  numbers  by  wars  and  oppressive  burdens. 
The  court  demanded  increased  favors  to  sustain  its  gaieties. 
Foreign  enemies  combined  against  him,  and  his  exhausted 
armies  retired  before  them.  Lack  of  troops  and  of  money 
paralyzed  the  state,  and  famine  and  pestilence  scourged  the 
people. 

In  1 71 5  after  reigning  seventy-two  years  Louis  XIV  died, 
leaving  the  crown  to  his  great  grandson,  a  child  five  years  of 
age.  The  will  of  the  King,  which  made  his  illegitimate  son, 
the  Duke  of  Maine,  guardian  of  the  young  King,  and  ap- 
pointed a  council  or  regency,  was  promptly  swept  aside  by 
the  Duke  of  Orleans,  who,  with  the  approbation  of  the  Parlia- 
ment of  Paris  and  the  populace",  assumed  the  regency,  freed 
from  the  restrictions  with  which  the  late  King  sought  to  cir- 


598  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

cumscribe  it.  The  regent  attempted  to  organize  a  ministerial 
system  with  six  boards,  for  foreign  affairs,  army,  navy, 
church  affairs,  home  affairs,  and  finance.  To  these  were 
afterward  added  one  ifor  commerce.  At  the  head  of  these, 
instead  of  men  chosen  on  account  of  their  fitness  for  work, 
he  selected  persons  of  rank,  under  whom  men  of  inferior 
degree,  but  more  capacity,  were  placed.  The  plan  proved  un- 
successful through  lack  of  merit  in  his  appointees.  The 
scheme  of  Law  to  relieve  the  financial  difficulties  of  the  time, 
which  has  met  with  such  severe  and  oft  repeated  condemna- 
tion, and  which  was  productive  of  so  many  imaginary  for- 
tunes and  so  much  real  misery,  yet  had  within  it  the  idea, 
which  has  since  been  often  utilized,  of  substituting  credit 
paper  for  coin.  His  disastrous  failure  resulted  more  from 
the  avidity  with  which  the  people  took  his  shares  and  turned 
in  their  money,  than  from  the  inherent  vice  of  the  scheme. 
Most  of  the  business  of  today  is  transacted  on  the  theory  that 
there  is  coin  on  deposit  to  pay  credit  balances  due  from  banks 
and  other  financial  institutions.  As  a  matter  of  fact  there 
is  ordinarily  about  one  dollar  for  every  ten  of  debt  in  the 
aggregate  of  the  banks,  but  this  in  ordinary  times  is  sufficient. 
Confidence  now  supplies  the  place  of  coin.  In  Laws  time 
confidence  was  excessive  at  first,  but  the  panic  quickly  (fol- 
lowed, and  against  panic  there  is  no  security.  The  Mississippi 
company  might  have  been  given  a  basis  of  real  value  equal 
to  the  wildest  dream  of  Law,  but  it  was  in  fact  but  a  bubble 
too  frail  to  stand  the  first  prick  of  criticism. 

In  1724  an  edict  was  issued  in  the  name  of  the  young 
King,  ostensibly  as  a  tribute  to  the  memory  and  to  carry  out 
the  design  of  Louis  XIV  to  extinguish  heresy.  This  edict 
condemned  "Preachers  to  the  penalty  of  death,  their  accom- 
plices to  the  galleys  for  life,  and  women  to  be  shaved  and 
imprisoned  for  life.  Confiscation  of  property;  parents  who 
shall  not  have  baptism  administered  to  their  children  within 
twenty-four  hours  and  see  that  they  attend  regularly  the 
catechism  and  the  schools,  to  fines  and  such  sums  as  they 
may  amount  to  together,  even  to  greater  penalties.  Mid- 
wives,  physicians,  surgeons,  apothecaries,  domestics,  relatives, 


FRANCE  599 

who  shall  not  notify  the  parish  priests  of  births  or  illnesses,  to 
fines.  Persons  who  shall  exhort  the  sick,  to  the  galleys  or 
imprisonment  for  life  according  to  sex;  confiscation  of  prop- 
erty. The  sick  who  shall  refuse  the  sacraments  if  they  re- 
cover, to  banishment  for  life;  if  they  die,  to  be  dragged  on 
a  hurdle."  Notwithstanding  this  savage  language  the  blood- 
thirsty spirit  of  St.  Bartholomews  Eve  no  longer  prevailed  in 
the  land,  and  there  was  little  disposition  to  rigorously  enforce 
this  edict.  It  was  only  here  and  there  that  its  barbarities  were 
carried  into  effect.  The  general  sentiment  of  the  people  had 
moved  forward  to  higher  ground.  Louis  XV  exhibited  in 
marked  degree  the  inherent  weakness  and  vice  of  absolute  rule. 
He  was  indolent  and  voluptuous,  though  not  cruel  as  despots 
go.  It  is  always  impossibe  for  a  single  man  to  know  the 
needs  of  a  great  country,  no  matter  how  energetic  and  earnest 
he  may  be,  but  when  that  man  is  inert  the  state  is  left  to  drift, 
and  always  drifts  into  confusion  and  misfortune.  Though 
France  coveted  dominion  in  India  and  America,  there  was  no 
strong  combination  of  vigorous  men  working  in  concert  to 
maintain  it.  An  idle  king  and  ministers,  whose  main  purpK>se 
was  to  live  in  ease  and  luxury,  neglected  giving  needed  sup- 
port to  the  adventurous  spirits,  who  labored  to  extend  French 
power,  trade  and  influence  in  the  east  and  west.  England 
with  its  navy  had  become  master  of  the  sea,  and  a  dissolute 
court  had  not  the  foresight  and  self-denial  to  expend  the 
revenue  in  building  a  navy,  but  it  was  squandered  in  luxurious 
living.  India,  Canada  and  the  valley  of  the  Mississippi  were 
lost,  and  passed  under  the  rule  of  its  great  rival,  England. 
Continental  wars  wasted  blood  and  treasure  without  profit. 
The  Seven  Years'  war,  formally  declared  by  France  against 
England  in  January  1756,  involved  before  its  conclusion  Aus- 
tria, Prussia,  Russia,  Spain  and  Italy  and,  though  fought  main- 
ly in  Germany,  impoverished  and  exhausted  all  Europe.  Prus- 
sia bore  its  heaviest  brunt  and  Frederick  the  Great  estimated 
that  the  participants  lost  800,000  men.  The  French  court 
is  well  described  by  Montesquieu. 

"Ambition  amidst  indolence,  baseness  amidst  pride,  the  de- 
sire to  grow  rich  without  toil,  aversion  from  truth,  flattery, 


6oo  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

treason,  perfidy,  neglect  of  all  engagements,  contempt  for  the 
duties  of  a  citizen,  fear  of  virtue  in  the  prince,  hope  in  his 
weakness,  and  more  than  all  that,  the  ridicule  constantly 
thrown  on  virtue  form,  I  trow,  the  characteristics  of  the 
greatest  number  of  courtiers,  distinctive  in  all  places  and  at 
all  times." 

The  very  firmness  with  which  the  doctrine  of  absolutism 
had  been  riveted  on  the  French  people,  under  a  weak  and 
indolent  monarch  such  as  Louis  XV,  afforded  the  example 
and  the  opportunity  for  successful  attack  upon  it.  King  and 
court  were  morally  and  intellectually  weak,  but  there  was 
growing  strength  among  the  people.  Students  and  philoso- 
phers wete  already  looking  behind  and  beyond  the  written 
edicts,  canons  and  decrees,  for  the  living  truth  as  the  only 
just  basis  of  authority.  Enlarged  intercourse  with  the  people 
of  other  European  states,  with  the  new  world  in  America  and 
the  old  in  India  and  the  east,  stimulated  inquiry  and  research 
into  every  field  of  knowledge.  There  were  many  active  brains 
in  France  busily  at  work.  Montesquieu,  Buffon,  Voltaire, 
Rousseau,  Diderot,  Alembert,  Fontenelle  are  great  names. 
In  seeking  new  truth  they  discovered  old  error.  The  falsity 
of  the  claims  to  dominion  over  mens  thoughts  and  consciences, 
their  lives  and  property,  became  apparent.  The  ;falsity  of  the 
claim  of  superiority,  which  had  so  long  supported  the  king 
and  those  who  thronged  his  court,  could  no  longer  be  con- 
cealed. Vice  and  immorality  appeared  as  such  though  prac- 
ticed by  kings,  cardinals  and  courtiers.  The  courts  too,  where 
questions  of  right  were  daily  discussed,  though  blinded  by 
adherence  to  established  rules  by  which  they  were  bound, 
whether  right  or  wrong,  at  least  perceived  that  the  king  ruled 
only  by  force  of  law,  and  that  he  too  was  therefore  inferior  to 
law.  The  first  internal  struggle  leading  up  to  the  great  revo- 
lution was  with  the  Parliaments  and  over  questions  of  taxa- 
tion. This  led  to  the  arrest  of  the  judges  and  finally  to  the 
dissolution  of  the  Parliaments  and  the  complete  reorganiza- 
tion of  the  judiciary  in  1771.  Louis  brooked  no  questioning 
of  his  power.  He  had  said  to  the  Parliament  of  Paris,  "The 
magistracy  does  not  form  a  body  or  order  separate  from  the 


FRANCE  6oi 

three  orders  of  the  kingdom,  the  magistrates  are  my  officers. 
In  my  person  alone  resides  the  sovereign  power,  of  which  the 
special  characteristic  is  the  spirit  of  counsel,  justice  and 
reason ;  it  is  from  me  alone  that  my  courts  have  their  existence 
and  authority."  How  little  did  he  understand  his  own  weak- 
ness and  the  growing  strength  and  increasing  knowledge  of 
the  people. 

He  died  in  1774,  and  his  grandson  Louis  XVI  at  the  age 
of  twenty  came  to  the  throne  with  Maria  Antionette,  daughter 
of  Maria  Theresa  of  Austria,  as  his  queen.  He  was  a  weak 
but  kindly  man,  neither  great  or  strong  enough  to  direct  the 
affairs  of  so  great  a  state.  He  had  the  fortune  to  call  to  his 
aid  some  strong  and  honest  ministers,  who  introduced  re- 
forms in  the  finances  beneficial  to  the  state,  but  correspond- 
ingly destructive  of  the  system  by  which  the  court  favorites 
obtained  their  greatest  incomes.  Turgot  first  and  then  Necker 
were  able  men,  who  sought  to  do  the  country  honest  service; 
but  the  corrupt  courtiers  gave  them  no  rest  and  finally  ob- 
tained their  dismissal.  The  American  Revolution,  following 
on  the  discussions  of  such  writers  as  Voltaire  and  Rousseau, 
produced  a  profound  impression  on  the  public  mind.  The 
opportunity  for  checking  the  growing  ascendency  of  Eng- 
land, even  though  to  do  so  required  an  alliance  with  rebels, 
who  in  declaring  their  independence  had  denied  the  doctrine 
of  the  divine  right  of  kings  and  in  its  place  asserted  that  all 
governments  derive  their  just  powers  from  the  consent  of 
the  governed,  was  too  tempting  to  be  neglected.  Bourbon 
France  and  Spain,  exponents  of  the  doctrine  of  unlimited 
monarchy,  joined  forces  with  the  freemen  of  America  against 
England.  The  result  in  America  was  the  birth  of  a  great 
republic,  which  became  the  model  of  all  the  states  of  the  new 
world.  Not  less  profound  was  the  impulse  given  to  the  grow- 
ing conceptions  of  liberty  in  France.  Already  disgusted  with 
its  decaying  despotism  and  longing  ;for  a  new  national  life, 
the  nation  seized  with  avidity  the  inspiration  and  sought  at 
one  bound  to  gain  the  lofty  pinnacle  of  "liberty,  equality  and 
fraternity."  The  King  was  a  reformer  but  without  much 
knowledge  of  affairs  or  steadiness  of  purpose.     At  the  in- 


6o2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

stance  of  Necker  he  abolished  mortmain  and  serfdom  on  the 
royal  estates,  put  an  end  to  the  preliminary  tortures  to  which 
defendants  were  put  by  the  soft  name  of  the  ''preparatory 
question"  and  caused  more  humane  treatment  of  those  con- 
fined in  prisons. 

The  age  of  intrigue  for  mere  power  had  passed,  and  the 
love  of  wealth  and  display  was  the  overmastering  passion  of 
courtiers.  Financial  difficulties,  arising  from  the  inordinate 
demands  for  money  to  waste  in  vain  display  rather  than  for 
legitimate  governmental  uses,  were  sources  of  anxiety  to  the 
King  and  his  ministers.  The  nation  was  vitally  interested  in 
the  reforms  proposed  by  Turgot  and  Necker,  but  the  favorites 
were  equally  interested  in  defeating  them,  and  were  an  active 
force.  Public  sentiment  was  without  coherence  or  steadiness. 
The  court  constantly  called  for  more  money.  The  people  re- 
sisted increased  taxation.  On  Dec.  29,  1786,  Louis  announced 
in  council  that  he  would  convoke  an  assembly  of  notables  on 
January  29  "to  communicate  to  them  my  views  for  the  relief 
of  my  people,  the  ordering  of  the  finances  and  the  reforma- 
tion of  abuses."  The  session  did  not  open  till  Feb.  22,  1787. 
It  was  not  a  representative  body,  but  composed  of  one  hun- 
dred and  forty-four  members,  all  named  by  the  King  as  fol- 
lows: seven  princes  of  the  blood  royal,  fourteen  archbishops 
and  bishops,  thirty-six  dukes  and  peers,  twelve  councillors  of 
state  and  masters  of  requests,  thirty-eight  judges,  twelve  depu- 
ties of  states  districts  and  twenty-five  municipal  officers. 
When  this  assembly  convened  the  fact  that  France  had  out- 
grown despotism  became  apparent.  The  public  demanded  an 
account  of  the  conduct  of  affairs,  and  to  know  what  became 
of  the  revenue  before  undertaking  to  provide  a  greater  one. 
An  annual  deficit  of  100,000,000  livres  a  year  had  been  stead- 
ily forcing  the  treasury  into  deeper  and  deeper  embarassment. 
The  session  closed  on  May  25,  1787,  without  any  other  result 
than  increased  publicity  of  the  financial  situation  and  a  more 
widespread  understanding  of  the  nature  and  extent  of  the 
abuses  which  prevailed  and  by  which  the  privileged  nobles, 
tax  farmers,  monopolists  ♦and  court  favorities  grew  rich  at 
the  expense  of  all  the  industrial  classes.     The  Assembly  left 


FRANCE  '  603 

the  King  to  deal  with  his  difficulties  the  same  as  before.  His 
edicts  relating-  to  the  stamp  tax  and  territorial  subvention 
were  registered,  and  then  the  registration  was  declared  null 
by  the  Parliament  of  Paris.  The  King  sent  the  Parliament 
away  to  Troyes.  The  growth  of  the  idea  that  all  were  sub- 
ject to  law  was  expressed  by  a  decree  of  the  Parliament,  in 
which  it  was  said,  ''The  monarchy  would  be  transfigured  into 
a  despotic  form  if  ministry  could  dispose  of  persons  by  sealed 
letters,  property  by  beds  of  justice,  criminal  matters  by  change 
of  venue  or  cassation  and  suspend  the  course  of  justice  by 
special  banishments  or  arbitrary  removals."  Though  the  prin- 
ciples thus  declared  may  meet  approval,  they  were  invoked  to 
sustain  privilege  rather  than  to  enforce  justice.  But  the  idea 
that  the  land  and  the  people  belonged  to  and  existed  for  the 
king  and  his  court  was  fast  being  supplanted  by  the  better  one 
that  the  government,  whatever  its  form,  must  serve  the  people 
and  promote  their  welfare.  Though  we  read  so  much  of  the 
difficulties  with  which  the  government  was  surrounded,  those 
difficulties  did  not  have  their  basis  either  in  exceptionally  bad 
natural  or  business  conditions,  nor  in  the  ambitions  of  rebel- 
lious subjects,  but  in  the  fact  that  the  nation  had, outgrown 
its  governmental  system  and  demanded  better  principles  and 
more  efficient  execution  of  them.  The  nation  clamored  for 
the  States-General,  the  ancient  representative  body  of  the 
kingdom.  On  Aug.  6,  1888,  a  decree  was  promulgated  for 
their  convocation  on  the  ensuing  ist  of  May.  There  was  much 
agitation  of  the  questions  as  to  their  composition  and  the 
representation  and  mode  of  choice  of  the  Third  Estate,  the 
only  representative  of  popular  elements.  An  Assembly  of 
Notables  was  again  convened  Nov.  6,  1788,  but  adjourned  on 
December  12  without  accomplishing  more  than  the  discussion 
and  agitation  of  the  general  subject  of  governmental  and  fi- 
nancial reform.  The  composition  of  the  States-General  was 
finally  determined  by  the  King  as  follows,  i.  There  should  be 
at  least  i  ,000  deputies.  2.  That  the  number  should  be  formed 
as  nearly  as  possible  in  compound  ratio  to  the  population  and 
taxes  of  each  baliwick.  3.  That  the  number  of  deputies  of 
the  Third  Estate  should  be  equal  to  that  of  the  two  other  orders 


6o4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

together.  They  were  convoked  for  April  27,  1 789.  Later  the 
number  was  fixed  at  1,200;  citizens  who  were  taxpayers  were 
declared  electors.  The  elections  caused  a  ferment  throughout 
the  provinces,  the  like  of  which  had  never  before  been  known 
in  any  country.  The  King  desired  to  effect  reforms,  but  was 
without  a  definite  policy.  He  had  called  together  representa- 
tives of  the  nation  to  consider  and  provide  for  its  needs  with 
no  further  preparation  than  a  partial  understanding  of  the 
gross  abuses  of  the  decaying  monarchy.  Naturally  and  logi- 
cally the  first  inquiry  was  directed  toward  ascertaining  what 
was  wrong.  The  one  overshadowing  fact  disclosed  to  •  even 
dull  minds  was  the  unmerited  power  and  privileges  of  the 
nobles  and  high  clergy  and  the  lavish  extravagance  of  the 
court.  Bad  harvests  aggravated  the  distress  of  the  poor,  but 
never  before  had  so  much  been  done  by  the  king  and  the  rich 
to  relieve  them.  Charity  did  not  satisfy,  when  the  poor  la- 
borer was  taught  by  the  agitators  that  his  rights  were  equal 
to  those  of  the  idle  court  favorites. 

Though  it  is  not  often  mentioned,  the  American  colonists 
derived  their  ideas  of  personal  liberty  and  individual  dignity 
to  some  extent  from  the  Indians,  who  absolutely  denied  the 
authority  of  rulers.  The  dissemination  of  American  ideas, 
thus  taken  from  the  savages,  among  a  people  of  most  lively 
sensibilities,  was  greatly  facilitated  by  the  students  and  ad- 
mirers of  Greek  and  Roman  liberty.  The  philosophers  had 
prepared  the  way  for  the  repudiation  of  monarchial  corrup- 
tion. The  nation  was  ready  to  condemn  the  bad  government 
and  the  false  theory  of  class  superiority  and  robbery  with 
which  it  was  oppressed,  but  it  was  not  prepared  to  construct 
a  new  system.  When  the  States-General  convened,  separate 
rooms  were  provided  for  the  noblesse  and  the  clergy,  but  the 
Third  Estate,  equal  in  numbers  to  both,  had  only  the  throne 
room,  intended  for  the  joint  meetings  of  the  three  orders,  in 
which  to  assemble.  The  verification  of  credentials  of  mem- 
bers was  left  to  the  assembly  itself,  as  well  as  the  question 
whether  the  sittings  should  be  in  one  or  separate  chambers. 
The  Third  Estate,  representing  the  common  people,  was  in 
possession  of  the  assembly  room,  and  after  inviting  the  other 


FRANCE  605 

orders  to  attend  proceeded  to  determine  who  were  en- 
titled to  seats,  admitting  such  of  the  inferior  clergy  and  no- 
bility as  chose  to  come  in.  They  chose  the  name  of  National 
Assembly,  by  which  this  most  memorable  gathering  is  known 
in  history.  When  the  session  was  opened  by  the  King  at 
Versailles  on  May  5,  there  were  about  1,100  deputies  present, 
of  whom  595  belonged  to  the  Third  Estate;  and  of  these 
three-fifths  were  lawyers. 

The  States-General  had  been  summoned  by  the  King  to  aid 
him  with  money  and  to  still  the  complaints  against  abuses,, 
but  when  convened  it  proceeded  to  act,  not  as  an  aid  to  a 
sovereign  king,  but  as  the  representative  of  a  sovereign  peo- 
ple. On  June  20,  after  having  undertaken  to  annual  all  the 
decrees  of  the  Assembly,  the  King  caused  the  doors  of  their 
hall  to  be  closed  and  decreed  a  royal  session  on  the  22nd. 
The  Assembly  met  nevertheless  in  a  tennis  court  and  passed 
a  decree,  "That  the  National  Assembly  considering  itself 
called  to  determine  the  constitution  of  the  kingdom,  to  effect 
the  regeneration  of  public  order,  and  to  uphold  the  true  prin- 
ciples of  the  monarchy,  declaring  that  nothing  shall  prevent 
its  continuing  its  deliberations,  and  that  wherever  its  members 
are  united,  there  is  the  National  Assembly;  Decrees  that  all 
the  members  of  this  Assembly  shall  this  instant  take  a  solemn 
oath  never  to  separate,  until  the  constitution  of  the  kingdom 
be  established  and  confirmed  upon  solid  foundation."  All  the 
deputies  but  one  took  the  oath.  On  the  22nd,  the  royal  ses- 
sion not  taking  place,  they  assembled  in  the  church  of  St. 
Louis,  where  the  majority  of  the  representatives  of  the  clergy 
joined  them,  one  hundred  iorty-eight  in  number.  On  the  23rd 
the  King  opened  the  session  with  a  speech  and  caused  a  decla- 
ration to  be  read  declaring  null  all  acts  of  the  Assembly  and 
limiting  their  deliberations  to  certain  subjects,  mainly  relating 
to  taxation;  adding,  "None  of  your  projects,  none  of  your 
ordinances,  can  have  the  authority  of  law  without  my  special 
approbation.  I  command  you,  gentlemen,  to  adjourn  im- 
mediately, and  to  appear  to-morrow  morning,  each  in  the 
chamber  appropriated  to  his  order,  to  resume  there  the  usual 
sessions."     The  king  left,  followed  by  the  nobility  and  part 


6o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  clergy,  but  the  third  estate  remained.  The  grand 
master  of  ceremonies  said  to  BailHe,  president  of  the  Assem- 
bly, "Monsieur  you  have  heard  the  King's  orders"?  Baillie 
replied  "I  cannot  dissolve  the  Assembly  until  it  has  deliberated 
upon  the  matter.  I  believe  that  the  assembled  nation  can  re- 
ceive no  command."  This  was  revolution.  It  denied  the 
sovereignty  of  the  King.  On  the  24th,  forty-seven  noble  depu- 
ties v^ith  the  Duke  of  Orleans  at  their  head  took  seats  in  the 
Assembly,  and  on  the  27th  the  King,  overawed  by  the  popular 
tumult  at  Paris  and  the  desertion  of  the  French  guard,  who 
sided  with  the  populace,  to  secure  his  own  safety  requested 
the  nobles  to  repair  to  the  common  hall,  which  they  did. 

Who  can  adequately  describe  the  awakening  of  a  great  na- 
tion after  many  centuries  of  tyranny,  maintained  in  accord- 
ance with  rules  called  laws,  which  their  teachers  both  spiritual 
and  temporal  have  taught  the  people  to  obey  as  of  divine 
origin  and  sanction,  to  a  realization  of  the  monstrous  falsity 
of  the  whole  system.  The  idols  were  broken  and  found  to  be 
but  base  impostures.  The  ferment  spread  throughout  the 
nation  as  the  great  leaders  of  the  Assembly  boldly  declared  the 
self-evident  truths  of  liberty  and  justice.  The  fruits  of  the 
teachings  oi  Montesquieu,  Fenelon,  Rousseau  and  Voltaire 
ripened  all  at  once  in  the  hot  house  of  the  Assembly.  In 
Paris  the  most  exalted  aspirations  of  pure  patriots  for  an 
age  of  justice  cooperated  with  the  hatred  and  savagery  of  the 
dregs  of  society,  who  called  for  vengeance  on  those  they 
deemed  the  cause  of  their  degradation.  The  Assembly  led 
the  march  of  ideas  grandly  at  Versailles,  but  the  ferment 
went  on  in  the  multitude  at  Paris.  The  courtiers  looked  to 
the  army  to  preserve  the  King's  authority  and  protect  them. 
The  revolutionary  forces  in  Paris  organized.  There  were  the 
electors,  the  Orleans  party  and  the  Breton,  afterwards  called 
the  Jacobin  Club.  On  July  11  the  King  dismissed  Necker, 
the  only  minister  in  whom  the  people  had  confidence.  On 
the  fourteenth  of  July  the  Parisians  broke  into  the  Dome  des 
Invalides,  seized  2,800  guns  and  stormed  the  hated  Bastile, 
the  prison  fortress,  which  stood  as  a  symbol  of  tyranny,  and 
at  once  proceeded  to  demolish  it.     There  were  lives  lost  iii 


FRANCE  607 

the  combat  and  faithless  executions  of  prisoners  taken,  whose 
blood  the  mob  demanded.  The  national  guard  was  organized 
by  authority  of  the  Assembly  and  the  districts  of  Paris  with 
La  Fayette  at  its  head.  Uprisings  were  not  confined  to  Paris 
but  spread  throughout  the  provinces  and  were  everywhere  di- 
rected against  those  who  profited  by  the  abuses  of  the  old 
regime. 

The  Assembly  proceeded  with  its  deliberations,  which 
reached  a  climax  on  August  4,  expressing  at  one  session  the 
condemnation  of  a  vast  system  of  oppression.  From  161 4  till 
1 789  the  nation  had  not  been  consulted  in  regard  to  public  af- 
fairs, despotism  and  privilege  had  flourished  at  the  expense 
of  the  people.  No  wonder  that  the  King  and  the  representa- 
tives of  the  people  were  so  wide  apart  in  their  purposes.  The 
King  looked  only  from  the  standpoint  of  long  recognized 
power.  The  assembly  was  profoundly  conscious  o,f  the  gross 
and  manifold  abuses  of  that  power.  The  King  wished  in- 
creased revenues  and  tranquil  submission  to  authority.  The 
people  demanded  relief  from  excessive  burdens  and  some 
measure  of  justice.  The  many  lawyers  of  the  Assembly  un- 
derstood the  laws  and  appreciated  the  inequity  of  them. 
Many  of  the  nobility  and  clergy  recognized  the  moral  inde- 
fensibility of  their  great  privileges.  On  the  evening  of  this 
memorable  session  the  Viscount  de  Noailles,  speaking  to  the 
demand  of  the  government  that  a  decree  be  passed  to  put  an 
end  to  the  disturbances  in  the  provinces  by  inviting  the  people 
to  obey  the  ancient  laws  till  modified,  declared  that  the  only 
means  of  restoring  peace  was  to  decree  immediately  a  pro- 
portional levy  of  taxes  on  all  citizens  ratably,  the  adjustment 
Oif  farm  rents  on  the  basis  of  income  and  the  abolition  of 
statute  labor,  mortmain  and  all  personal  servitude.  This  blow 
at  feudal  privilege  was  seconded  by  the  Duke  d'  Aiguillon,  the 
richest  nobleman  of  France.  No  voice  was  raised  in  defense 
of  feudal  injustice.  Then  it  was  demanded  that  the  recipients 
of  royal  favors,  the  court  seigniors,  should  bear  their  part. 
The  Dukes  of  Guiche  and  Mortemart  replied  that  they  were 
ready  to  renounce  the  king's  benefits  and  share  the  common 
burdens.    Then  privilege  after  privilege  was  attacked  in  rapid 


6o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

succession.  Employments  were  opened  to  all  citizens  alike^ 
and  penalties  for  crime  were  made  the  same  to  all  classes. 
Feudal  courts,  through  which  the  nobles  were  judges  over 
their  vassals,  were  abolished.  Hunting  rights,  enjoyed  only 
by  the  nobility,  were  opened  to  all.  Then  came  the  turn  of 
the  clergy;  the  cures  were  shorn  of  their  perquisites,  and  the 
bishops  of  their  titles.  Having  disposed  of  the  privileges  of 
the  nobles  and  clergy,  those  o,f  the  provinces  and  cities  were 
brushed  away,  and  the  deputies  for  Brittany,  Provence  and 
Languedoc,  and  for  Paris,  Marseilles,  Bordeaux  and  Lyons, 
renounced  all  their  great  advantages  with  respect  to  imposts. 
Then  came  the  suppression  of  the  privileges  of  freemen  and 
tradesmen  in  the  monopoly  of  work.  Thus  in  a  single  night 
sitting  from  8  p.  m.  to  2  a.  m.  fell  the  whole  system  of 
privileges,  and  in  its  place  stood  the  great  French  nation  com- 
posed of  citizens,  each  with  equal  rights  before  the  law.  Never 
in  all  time  was  an  equal  number  of  abuses  exposed  and  laid 
low  by  any  representative  of  a  nation  at  a  single  session.. 
Radical,  thorough  and  far-reaching  as  these  measures  were,, 
they  were  all  clearly  and  unqualifiedly  right,  and  this  accounts 
for  the  celerity  with  which  each  abuse  ifell  in  its  turn. 

On  the  twenty-sixth  of  the  same  month  the  great  work  of 
the  fourth  was  supplemented  by  the  adoption  of  the  following 
Declaration  of  the  Rights  of  the  Man  and  of  the  Citizen, 
"i.  Men  are  born  and  remain  free  and  equal  in  their  rights. 
2.  These  rights  are  :  liberty,  property,  safety  and  resistance 
to  oppression.  3.  The  principle  of  all  sovereignty  resides  in 
the  nation.  No  body,  no  individual  can  exercise  authority 
not  emanating  directly  from  it.  4.  Liberty  consists  in  the 
power  to  do  all  that  which  does  not  injure  others.  5.  Law 
has  the  right  to  forbid  only  actions  detrimental  to  society. 
6.  Law  is  the  expression  of  the  general  will.  All  citizens 
have  the  right  to  concur  personally  or  through  their  repre- 
sentatives in  its  enactment.  It  should  be  the  same  ifor  all, 
whether  it  protect  or  whether  it  punish.  All  citizens  being 
equal  in  its  eyes,  are  equally  admissible  to  all  dignities,  public 
places  and  employments,  according  to  their  capacity,  their 
virtue  and  their  talents.     7.  No  man  can  be  accused,  arrested 


FRANCE  609 

or  imprisoned  save  in  cases  determined  by  law  and  according 
to  the  forms  it  has  prescribed.  8.  The  law  should  establish 
only  penalties  strictly  and  evidently  necessary,  and  no  one 
can  be  punished  save  in  virtue  of  a  law  established  and  pro- 
mulgated before  the  offense  ^nd  legally  applied.  9.  Every 
man  being  presumed  innocent  until  he  has  been  proven  guilty, 
if  it  is  judged  indispensable  to  arrest  him.,  every  rigor  not 
necessary  to  secure  his  person  should  be  severely  reproved 
by  the  law.  10.  No  one  shall  be  disquieted  on  account  of  his 
opinions,  even  his  religious  ones,  provided  their  manifestation 
does  not  disturb  the  public  order  established  by  law.  1 1 .  The 
free  communication  of  thoughts  and  opinions  is  one  of  the 
most  precious  rights  of  man.  Every  citizen  can  therefore 
speak,  write  and  print  freely,  except  he  abuse  his  liberty  in 
cases  determined  by  law.  12.  The  guaranty  of  the  rights  of 
the  man  and  the  citizen  necessitates  a  public  force.  13.  For 
the  maintenance  of  the  public  force  and  for  the  expenses  of 
administration,  a  general  tax  is  indispensable.  It  shall  be 
equally  divided  among  all  citizens,  in  proportion  to  their 
ability.  14.  All  citizens  have  the  right  to  aver  of  themselves 
or  through  their  representatives  the  necessity  of  the  public 
tax,  to  freely  consent  to  it,  to  watch  over  its  distribution,  to 
determine  its  quota,  its  assessment  its  collection  and  its  dura- 
tion. 15.  Society  has  the  right  to  demand  of  every  public 
agent  an  account  of  his  administration.  16.  Every  society  in 
which  the  guaranty  of  rights  is  not  assured,  nor  the  division 
of  authority  determined,  has  no  constitution.  17.  Property 
being  an  inviolable  and  sacred  right  no  one  can  be  deprived  of 
it,  unless  when  public  necessity  legally  averred,  evidently  de- 
mands it,  and  under  the  condition  of  a  just  and  previously  ar- 
ranged indemnity."^  This  was  the  grandest  chart  of  liberty 
and  justice  ever  proclaimed,  but  the  struggle  to  enforce  its 
precepts  was  yet  to  come.  To  give  form  to  a  reorganization 
of  society,  which  should  secure  the  enjoyment  of  these  prin- 
ciples, was  a  task  of  far  greater  difficulty  than  to  formulate 
and  declare  them.  The  heart  of  the  nation  responded  ad- 
mirably to  the  lofty  sentiments  of  the  Assembly,  and,  though 

*  Martin,  1-60. 


6io  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

there  were  conflicts  in  various  quarters,  the  desire  for  a  new- 
order  of  things  was  general.  Everywhere  the  people  pro- 
ceeded to  reconstruct  and  organize.  The  cities  chose  their 
magistrates,  and  the  national  guard  was  organized  through- 
out the  provinces.  The  Assembly  undertook  to  reconstruct 
the  whole  system  of  government.  The  old  Parliaments  were 
abolished  and  a  graded  system  of  courts,  from  justices  of  the 
peace  with  jurisdiction  in  petty  cases  to  a  court  of  cassation 
with  jurisdiction  for  the  correction  of  errors  of  law  over  the 
whole  nation,  was  devised.  Intermediate  were  the  district 
courts,  composed  of  judges  elected  by  the  people.  Jury  trial 
was  provided  for  in  criminal  cases.  Commercial  tribunals 
for  the  merchants  were  also  established.  In  place  of  the 
ancient  thirty-two  provinces  the  country  was  divided  into 
eighty-four  departments,  each  of  which  was  divided  into  dis- 
tricts and  these  into  cantons.  Primary  assemblies  were  to  be 
held  in  the  cantons,  which  were  to  choose  members  of  the  de- 
partmental assembly,  and  these  were  to  name  the  members  of 
the  National  Assembly.  The  suffrage  was  restricted  to  citizens 
twenty-five  years  of  age,  who  had  lived  one  year  in  the  coun- 
try, paid  a  direct  tax  amounting  to  three  days  labor  and  who 
were  not  hired  servants.  Local  self-government  was  provided 
through  representative  bodies  in  the  cantons,  districts  and 
departments.  The  king  had  the  right  to  suspend  local  ad- 
ministrations not  in  accordance  with  his  orders  for  the  exe- 
cution of  the  laws,  but  subject  to  confirmation  or  abrogation 
by  the  Assembly. 

The  spontaneous  movement  of  the  people  in  the  direction 
of  reorganization  did  not  stop  with  the  choice  of  local  of^cers 
and  the  organization  of  the  guard.  To  defend  against  law- 
less bands  and  apprehended  dangers  they  formed  leagues  one 
with  another.  This  movement  began  in  September  1789  and 
continued  till  the  Federation  spread  throughout  all  France  as 
a  pledge  and  bond  of  concord  and  union.  On  July  14,  1790, 
the  anniversary  of  the  taking  of  the  Bastile,  a  grand  festival 
was  held  at  Paris,  attended  by  15,000  deputies  representing 
the  national  guard  and  11,000  soldiers  and  sailors  from  the 
army  and  navy.    The  event  was  a  joyous  one.    La  Fayette  in 


FRANCE  6ii 

the  name  of  the  national  guard  took  the  civic  oath,  and  the 
King  said  from  his  throne,  "I  King  of  the  French,  swear  to  up- 
hold the  constitution  decreed  by  the  National  Assembly  and 
accepted  by  me."  A  great  banquet  and  fete  followed.  The 
revolution  seemed  to  have  been  accomplished,  and  the  spirit 
of  concord  and  fraternity  prevailed  everywhere.  This  trans- 
port of  lofty  sentiment  presented  a  spectacle  not  to  be  decried 
because  of  the  terrible  days  that  were  to  come.  It  was  a 
day's  realization  of  a  possible  future,  only  to  be  made  perma- 
nent by  a  long  struggle  and  much  suffering.  In  December 
1789,  in  order  to  supply  funds  for  the  pressing  necessity  of 
the  state,  it  was  resolved  to  sell  the  lands  and  buildings  be- 
longing to  the  Crown, — except  the  palaces  and  forests, — and 
part  of  the  church  property  which  had  been  declared  to  belong 
to  the  nation ;  but  as  this  would  require  time,  negotiable  bonds 
amounting  to  400,000,000  livres  were  issued  and  secured  by 
a  pledge  of  this  property.  As  they  were  not  readily  accepted,, 
they  were  given  a  forced  currency.  In  September  1890,  finan- 
cial difficulties  having  still  increased,  a  further  issue  of  800,- 
000,000  was  authorized.  The  scheme  of  Law  in  substance 
was  thus  again  resorted  to. 

While  the  just  principles  of  the  revolution  commended 
themselves  to  the  moral  sense  of  the  people  generally,  ancient 
prejudices  and  the  habits  and  opinions  passed  down  from  gen- 
eration to  generation  could  not  be  eradicated  in  a  day  or  a 
year.  The  nobility  had  been  accustomed  to  despise  all  useful 
labor,  to  scorn  all  activities  but  those  of  war  and  the  court. 
Their  personal  following  had  been  accustomed  to  look  solely 
to  them  for  employment  and  support.  The  structure  of  so- 
ciety could  not  be  demolished  and  reorganized  at  a  single 
stroke.  More  deep  seated  still  was  the  reverence  for  the 
established  church,  to  which  a  great  majority  of  the  people 
adhered.  Religious  habits  are  strong  everywhere  and  among 
an  unlearned  people,  such  as  the  masses  of  the  French  then 
were,  the  influence  of  the  clergy  is  very  powerful.  When  con- 
fronted in  the  Assembly  by  the  brilliant  leaders  of  the  revolu- 
tion, the  representatives  of  the  priesthood  had  yielded  to  the 
demands  of  justice,  but  when  the  body  of  the  clergy  were 


6i2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

called  on  to  give  up  the  great  properties  and  privileges  they 
had  so  long  enjoyed,  selfishness  again  resumed  its  sway,  and 
the  sacredness  of  ecclesiastical  rights  was  asserted  in  oppo- 
sition to  the  authority  of  the  Assembly.  The  Pope  too  inter- 
posed his  authority  against  the  destruction  of  ecclesiastical 
privilege.  The  great  multitude  of  priests  high  and  low  had 
been  accustomed  to  a  certain  scale  of  living  at  the  expense  of 
the  people.  To  adjust  themselves  to  a  complete  change  of 
system  was  no  easy  task,  and  all  the  inertia  of  a  great  and 
long  dominant  religious  establishment  was  opposed  to  the  new 
order  of  things.  Though  many  individuals  among  the  priest- 
hood were  most  zealous  and  intelligent  reformers,  and 
though  a  large  portion  of  the  representatives  of  the  clergy 
had  joined  with  the  Third  Estate  in  the  most  radical  measures, 
of  the  Assembly,  the  great  church  organization  still  stood 
riveted  to  the  traditions  and  prejudices  of  the  past  and  hostile 
to  the  attacks  on  its  great  abuses  of  privilege. 

The  nobles,  though  many  of  them  had  been  carried  along 
by  the  waves  of  lofty  sentiment  that  ruled  the  Assembly,  and 
though  among  them  were  earnest  and  thoroughly  determined 
reformers  like  La  Fayette,  were  still  as  a  class  tied  to  all  that 
was  bad  in  the  structure  of  society.  Deprived  of  their  great 
privileges,  many  of  them  were  simply  contemptible  as  men. 
Without  a  habit  of  useful  effort  or  a  desire  to  do  good  in  the 
world,  they  found  themselves  cast  down  from  their  positions 
of  superiority  and  rated  at  their  true  value.  Intrigue  for 
unmerited  advantage  had  been  in  large  measure  their  occupa- 
tion under  the  monarchy,  and  intrigue  to  regain  their  privi- 
leges was  their  natural  recourse  when  the  revolution  came. 

These  powerful  forces,  the  nobles  and  their  dependents  and 
the  clergy,  were  to  be  overcome  within  the  state  before  the 
fruits  of  the  revolution  could  be  made  secure.  Without  the 
state  dangers  threatened  on  every  hand.  The  spirit  of  the 
revolution  was  opposed  to  the  spirit  of  class  and  church  privi- 
lege, which  prevailed  everywhere  in  Europe.  All  the  ruling 
forces  of  all  the  neighboring  states  were  vitally  interested  in 
maintaining  the  abuses  of  power  which  the  revolution  had 
overthrown.     The  claim  of  the  right  of  the  people  to  rule 


FRA.XCE  613 

was  destructive,  not  only  of  monarchical  authority  but  of  all 
that  vast,  false  and  vicious  system  of  lay  and  ecclesiastical 
aristocracy,  v^hich  for  so  many  ages  cursed  and  oppressed  the 
multitude.  The  leaders  of  the  revolution  soon  perceived  that 
all  these  forces  were  to  be  reckoned  with.  Distrust,  often 
well  founded,  caused  the  patriots  to  closely  watch  the  old 
aristocracy.  The  Jacobin  Club  became  the  most  potent  organi- 
zation of  the  enemies  of  privilege.  Its  headquarters  were  in 
Paris,  where  most  of  the  leaders  of  the  Assembly  were  mem- 
bers; it  established  branches  in  every  part  of  the  kingdom, 
with  which  it  kept  up  an  active  correspondence. 

The  Assembly  reorganized  the  clerical  establishment  and 
required  the  clergy  to  take  the  civic  oath.  The  Pope  inter- 
posed his  authority  and  by  his  letter  suspended  from  their 
functions  those  priests  who  having  already  taken  the  oath  did 
not  retract  it  within  forty  days.  Refractory  bishops  and 
priests  sought  to  arouse  their  flocks  to  opj)ose  the  authority 
of  the  Assembly.  The  Assembly  had  usurped  functions  long 
regarded  as  belonging  exclusively  to  church  authority.  Louis 
had  his  Easter  services  in  1790  performed  by  a  refractory 
priest.  This  was  denounced  as  treason.  On  the  night  of  June 
20,  1 79 1,  the  King  and  Queen  fled  from  the  Tuileries  through 
an  unguarded  gate,  leaving  a  proclamation  protesting  against 
all  the  acts  to  which  he  had  assented  during  his  captivity. 
Great  was  the  commotion  at  Paris.  At  Varennes  the  fugitive 
King  and  Queen  were  arrested  on  the  night  of  the  twenty-first 
and  the  next  day  they  were  taken  back  to  Paris.  General 
Bouille,  who  had  undertaken  to  guard  the  King's  flight,  found 
himself  unable  to  do  so.  The  whole  country  rose  against 
him,  and  many  of  the  troops  sided  with  the  Assembly,  which 
had  ordered  that  the  King  be  brought  back.  By  order  of  the 
Assembly  the  King  and  Queen  remained  at  the  Tuileries  under 
guard.  The  King  expressed  himself  as  satisfied  that  the  people 
of  France  supported  the  Assembly.  On  July  17  there  was  a 
most  unfortunate  tumult  at  the  Champ  de  Mars,  the  scene  of 
the  festivities  of  a  year  before,  during  which  the  national 
guard  fired  on  the  multitude  and  killed  many.  On  Sept.  3, 
1791.  the  Assembly,  having  completed  the  revision  of  its  work„ 


614  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

bore  the  constitution  to  the  King  for  his  approval.  He  sent 
his  acceptance  ten  days  afterward,  and  on  Sept.  14  he  went 
to  the  Assembly  and  there  swore  to  be  faithful  to  the  nation 
and  to  the  law.  On  the  thirtieth  he  attended  its  closing  ses- 
sion, and  the  great  National  Constituent  Assembly  ended  its 
labors.  Of  it  La  Fayette  said,  'The  Assembly  dissolved  vol- 
untarily, without  any  of  its  members  having  won  either  for- 
tune or  place,  or  titles,  or  power;  and  we  confidently  affirm 
that  never  was  an  association  of  men  led  by  a  truer  devotion 
to  all  pertaining  to  the  liberty  and  consequently  to  the  real 
honor  of  a  nation." 

The  elections  for  the  new  Assembly  had  taken  place  in 
September.  It  opened  October  i,  1791  with  seven  hundred 
and  thirty  members,  including  many  young  men  twenty-five 
to  thirty  years  old.  On  the  seventh  the  king  attended  and 
made  a  short  address,  favorable  to  the  principles  of  the  con- 
stitution. Many  of  the  nobility  had  fled  from  France  and 
gathered  upon  the  German  frontier,  where  they  constantly 
plotted  and  solicited  iforeign  aid  to  overthrow  the  constitution. 
Decrees  were  issued  recalling  them,  and  complaints  were  made 
against  the  governments  which  sheltered  them.  On  April  20, 
1792  the  Assembly  declared  war  against  the  King  of  Hungary 
and  Bohemia.  The  approach  of  foreign  enemies  and  the  dread 
of  internal  conspiracies  kept  the  nation  and  the  capital  in  a 
ferment.  The  undisciplined  army  at  first  met  with  reverses, 
which  ardent  revolutionists  were  disposed  to  charge  to  treason. 
The  radicals  clamored  for  the  deposition  of  the  King.  On 
Aug.  10,  1792,  the  mob  mvaded  the  Tuileries,  from  which  the 
King  and  Queen  took  refuge  in  the  Assembly.  The  Swiss 
guard,  having  fired  into  the  throng,  were  massacred.  The 
Assembly  overawed  by  the  mob  passed  a  decree,  "That  the 
French  people  is  invited  to  form  a  National  Convention.  The 
chief  of  the  executive  power  is  suspended  from  its  functions 
until  the  National  Convention  has  spoken.  Every  public  func- 
tionary and  every  soldier,  who  in  these  days  of  alarm  shall 
abandon  his  post,  is  declared  a  traitor  to  the  country."  The 
right  of  suffrage  was  extended  to  all  citizens  over  twenty-five 
living  from  the  proceeds  of  their  labor.     On  the  next  day  the 


FRANCE  615 

primary  elections  were  fixed  for  August  26  and  the  meeting 
of  the  convention  for  September  20. 

The  power  that  had  directed  the  attack  on  the  Tuileries 
and  that  now  rose  into  unenviable  prominence  was  the  rep- 
resentative of  the  sections  of  Paris.  At  a  new  election  their 
number  was  raised  to  288,  who  assumed  the  general  powers 
of  the  Paris  Commune.  Never  was  there  such  a  lamentable 
exhibition  of  the  evil  effects  of  mutual  distrust  and  threats  of 
vengeance  as  at  this  time.  Ardent  republicans  clamored  for 
the  execution  of  the  political  prisoners.  Royalists  in  bravado 
threatened  death  to  the  revolutionists  when  the  power  of  the 
king  should  be  restored.  The  air  was  filled  with  talk  of  blood 
and  the  passions  of  the  most  brutal  became  thoroughly 
aroused,  while  even  the  more  humane  lived  in  an  atmosphere 
filled  with  the  contagion  of  violence  and  malice.  The  Paris 
Commune  appointed  a  Committee  of  Surveillance,  composed 
of  violent,  bad  men,  including  Marat  the  Madman.  On  Sep- 
tember 2  twenty  priests,  who  refused  to  take  the  oath,  were, 
while  being  transferred  to  the  Abbaye  prison,  nearly  all  massa- 
cred by  their  guards.  Then  ifollowed  the  slaughter  of  other 
prisoners  under  the  direction  of  this  Committee,  backed  by  a 
bloodthirsty  mob.  No  public  authority  interfered.  All  seemed 
paralyzed.  The  general  public  conscience,  which  had  been 
warped  by  the  intemperate  language  of  extremists,  did  not 
awaken  to  the  enormity  of  the  crimes  which  were  being  com- 
mitted till  it  was  too  late.  The  slaughter  went  on  through 
the  second  and  third  and  did  not  cease  till  the  sixth,  during 
which  time  more  than  1,300  victims  suffered  death.  Only 
about  one-third  of  these  were  political  offenders.  The  rest 
were  prisoners  charged  with  crime. 

By  the  seventeenth  the  Assembly  began  to'  reassert  its 
authority.  It  ordered  new  elections  for  members  of  the  Con- 
vention in  Paris,  where  Marat  and  other  leaders  of  the  massa-. 
ere  had  been  chosen  through  intimidation  of  the  better 
elements,  prohibited  all  night  searches,  authorized  all  persons 
to  resist  violation  of  their  domicils  by  force,  and  required  the 
mayor's  signature  to  all  orders  of  arrest.  It  further  decreed 
that  in  any  town  where  the  legislative  body  was  in  session, 


6i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

whoever  sounded  the  tocsin  or  fired  the  alarm  gun  without 
order  should  be  put  to  death.  On  September  21,  the  As- 
sembly passed  out  of  existence  and  the  National  Convention 
took  its  place. 

The  first  important  act  of  the  Convention,  passed  by  ac- 
clamation on  that  day  was,  "The  National  Convention  decrees 
the  abolition  of  royalty  in  France."  It  was  further  decreed 
that  all  public  enactments  should  date  from  September  22  as 
the  first  day  of  the  year  i  of  the  Republic.  On  the  borders 
the  armies  of  France  were  gaining  victories,  not  so  much  by 
force  of  numbers  as  of  ideas.  The  liberty  held  out  to  people 
everywhere  was  gladly  accepted  in  Belgium,  Savoy,  Nice  and 
along  the  Rhine,  and  the  spirit  animating  the  army  gave  it  a 
new  force  to  which  the  soldiers  0;f  kings  were  unaccustomed. 
On  December  15  the  Convention  decreed  that  in  territory  oc- 
cupied by  the  armies  of  France  the  generals  should  proclaim 
the  abolition  of  existing  imposts,  titles,  feudal  claims,  chattel 
or  personal  servitude,  and  exclusive  rights  of  the  chase,  and 
all  privileges,  and  ''proclaim  the  sovereignty  of  the  people 
and  the  abolition  of  all  existing  authorities;  they  shall  con- 
voke the  people  into  primary  assemblies  to  organize  a  provis- 
ional administration." 

The  trial  of  the  King  on  the  charge  of  treason  by  the  Con- 
vention had  been  in  progress,  and  on  January  15  and  16  a 
vote  was  taken  on  three  questions.  On  that  of  guilt  683  out 
of  the  721  members  voted  in  the  affirmative.  On  the  question 
of  submitting  the  decision  to  ratification  by  the  people  there 
were  424  votes  against  to  283  for.  On  the  penalty  387  voted 
for  death  against  334.  On  the  twenty-first  he  was  executed. 
Following  a  levy  ;for  300,000  men  to  meet  the  enemies  of 
France,  there  was  a  bloody  revolt  on  the  lower  Loire  in  La 
Vendee.  Dumouriez,  who  commanded  the  army  in  Belgium, 
turned  traitor  and  sought  to  deliver  the  army  to  the  enemy. 
England,  in  which  there  had  been  some  sympathy  with  the 
revolution,  was  shocked  by  the  execution  of  the  king,  and  its 
interests  were  attacked  by  the  course  pursued  in  the  Lowlands. 
It  began  preparations  for  war.  Distrust  grew  among  the 
republican  factions.     On  March  9  the  Convention  established 


FRANCE  617 

the  revolutionary  tribunal  to  pass  sentence  on  conspirators  and 
counter  revolutionists.  On  April  6  a  committee  of  safety 
composed  of  nine  members,  to  deliberate  in  secret,  was  estab- 
lished, to  take  the  place  of  a  prior  committee  of  twenty.  This, 
the  Committee  of  Public  Welfare,  became  the  executive  head 
of  the  nation,  with  Danton  and  Cambon  as  its  leading  mem- 
bers. It  was  to  be  changed  every  month.  On  May  18  a  com- 
mittee of  twelve  was  appointed  by  the  Convention  to  inquire 
into  the  conduct  of  the  Commune.  This  met  with  violent  op- 
position from  the  radicals  of  the  city,  and  the  commission  was 
soon  abolished.  The  radicals  were  not  appeased  and  on  June 
2  the  Parisian  mob,  under  the  lead  of  Marat,  invaded  the  con- 
vention and  by  intimidation  forced  it  to  vote  the  arrest  of 
thirty-one  of  its  most  patriotic  members,  who  opposed  the 
violent  measures  of  the  Eveche  and  the  Jacobins.  Nothing 
can  better  show  the  prevalence  of  a  genuine  spirit  of  progress 
than  the  fact  that,  amid  all  the  turmoil  and  violence  with 
which  they  were  surrounded,  the  Convention  on  the  third  and 
fourth  of  June  appointed  special  committees  to  prepare  the 
civil  code,  to  offer  rewards  to  authors  of  good  elementary 
school  books,  and  to  regulate  the  division  of  the  public  prop- 
erty. On  June  23  a  new  constitution  was  adopted,  which  con- 
tained among  others  a  provision,  that  laws  should  be  submitted 
to  a  vote  of  the  people  in  case  within  forty  days  after  passage 
by  the  Assembly  one-tenth  of  the  primary  Assembly  in  half 
the  departments  plus  one  objected  to  the  law,  otherwise  the 
law  would  stand.  This  constitution  never  became  operative. 
Counter  revolutions  within  the  state  at  Lyons,  in  La  Vendee 
and  at  other  places  and  war  with  foreign  powers  called  for 
the  utmost  vigor.  On  August  23  the  Convention  decreed  a 
levy  for  active  service  of  all  unmarried  citizens  and  childless 
widowers  from  eighteen  to  twenty-five  years  of  age,  and 
called  on  all  citizens  en  masse  to  aid  in  their  organization  and 
equipment.  On  August  15  Cambon  presented  a  plan,  which 
the  Convention  adopted,  for  the  consolidation  and  recording 
in  'The  Great  Book"  the  items  of  the  public  debt,  to  bear 
live  per  cent  interest.  Under  the  monarchy  all  had  been 
confusion.     This  became  the  foundation  of  an  orderly  sys- 


6i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tern  of  public  finance.  On  June  26  Lakanal  presented  a  scheme 
for  the  primary  education  of  both  sexes,  and  on  October  26 
a  decree  ior  the  estabhshment  of  schools  on  this  plan  was 
passed,  but  war  internal  and  external  and  lack  of  means  ren- 
dered it  impracticable  to  carry  the  decree  into  effect.  On 
August  I  the  Convention  adopted  the  metric  system  of  mea- 
surements and  weights.  The  Convention  also  in  this  time  of 
strife  within  and  without  proceeded  with  the  great  work 
started  by  the  Constituent  Assembly  of  collecting  into  a  single 
code  the  civil  law  of  France.  A  committee  of  five  was  ap- 
pointed and  allowed  three  months  to  make  its  report.  It 
brought  in  its  draft  at  the  end  of  the  first  month,  and  discus- 
sion on  it  went  on  at  sixty  sessions.  Here  the  substance  of 
that  great  work,  which  bears  the  name  of  Napoleon,  was 
given  form.  Its  materials  were  taken  from  the  ancient  Ro- 
man civil  law,  and  from  the  products  oif  the  labors  of  the 
Constituent  Assembly  and  moulded  to  meet  the  views  of  the 
Convention.  Influenced  by  the  counter  revolution  at  Lyons, 
Marseilles  and  elsewhere,  and  greatly  exasperated  by  the 
treason  at  Toulon,  by  which  it  was  surrendered  with  all  its 
naval  and  military  stores  to  the  English,  Paris  was  again  in 
a  violent  ferment.  A  vote  carried  for  the  division  of  the 
revolutionary  tribunal  into  four  sections,  in  order  to  expedite 
its  work,  and  the  terrible  motto  "Let  the  reign  of  Terror  be 
the  order  of  the  day,"  was  seconded  by  a  decree  for  an  armed 
force  to  restrain  counter  revolutionists  and  protect  supplies. 
On  September  17  a  law  for  the  arrest  of  suspected  persons 
was  passed,  which  left  the  utmost  latitude  to  the  revolutionary 
committee  entrusted  with  its  execution.  The  only  condition 
imposed  was,  that  the  names  of  persons  arrested  should  be 
sent  to  the  Committee  of  Public  Safety.  The  killing  of  Marat 
by  Charlotte  Corday  tended  to  inflame  the  radicals.  On 
October  14  Marie  Antoinette  was  condemned  and  executed. 
Then  came  the  trial  of  the  Girondist  members  of  the  Con- 
vention, whose  arrest  had  been  ordered  on  the  third.  Twenty- 
one  of  them,  really  innocent  of  any  crime,  but  courageous 
men,  who  opposed  the  wild  excesses  of  the  rabble,  were  con- 
demned and  executed.     This  however  was  not  the  light  in 


FRAXXE  619 

which  the  matter  was  then  viewed.  The  Girondists'  uprisings 
throughout  France  were  charged  against  them,  and  they  were 
sacrificed.  There  was  Httle  attention  to  forms  of  procedure 
or  evidence  of  guilt  by  the  revolutionary  tribunals,  which  now 
extended  their  work  over  France.  Vigorous  military  oper- 
ations were  carried  on  against  counter  revolutionists,  and 
before  the  end  of  1793  La  Vendee,  Lyons  and  Marseilles  were 
overpowered  and  Toulon  was  recovered  from  the  English. 
The  bloody  tribunal  followed,  wreaking  vengeance  on  those 
singled  out  for  punishment.  Trials  were  summary  and  exe- 
cution quickly  followed  condemnation.  Madame  Roland,  a 
most  brilliant  and  pure  minded  leader  of  the  revolution,  with 
many  others  of  the  best  people  of  France,  fell  a  victim  to  the 
fury  of  this  bloody  tribunal.  Yet,  while  all  this  terrible  work 
was  going  on  within,  France  was  triumphing  over  her  enemies 
without,  and  along  the  eastern  border  the  enemies  were  driven 
back.  Though  the  reign  of  terror  went  on,  after  the  end  of 
the  year  1793  the  baneful  power  of  the  Paris  Commune  was 
checked  by  requiring  the  committees  of  the  sections  to  report 
directly  to  the  Committee  of  General  Safety.  The  Committee 
of  Public  Welfare  was  placed  above  the  ministers  and  vested 
with  the  general  direction  oi  the  government.  This  divided 
into  three  groups  of  three  each,  exercising  distinct  functions, 
and  being  composed  of  men  of  great  energy  gave  to  the  ad-^^ 
ministration  needed  vigor,  though  it  failed  to  protect  the  in- 
nocent. The  year  1793  also  brought  to  view  the  man  who 
was  to  deluge  Europe  with  blood  and  be  the  central  figure  in 
its  history  for  many  years  to  come,  Napoleon.  On  June  10, 
1794,  in  order  to  expedite  the  work  of  executing  prisoners, 
on  motion  of  Robespierre  it  was  provided  that  witnesses 
against  the  accused  should  not  be  required,  if  other  means  of 
proof  existed.  The  pace  of  condemnation  was  greatly  acceler- 
ated. In  a  little  over  a  year  prior  to  that  time  1256  persons 
had  been  condemned.  In  six  weeks  thereafter  1361  suffered. 
Nowhere  else  has  bloody  retribution  overtaken  those  guilty  of 
bloody  deeds  with  such  promptness  and  certainty  as  during 
the  Reign  of  Terror.  On  July  28,  1794,  Robespierre,  Saint 
Just  and  Couthon,  who  three  days  before  had  felt  so  secure  in 


620  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  control  of  affairs  as  to  call  the  other  members  of  the  com- 
mittee to  account,  were  condemned  and  executed  with  nine- 
teen others,  most  of  whom  had  taken  part  in  their  bloody 
work.  The  next  day  the  seventy  members  of  the  general 
council  of  the  Commune  of  Paris,  many  of  whom  were  guilty 
of  no  offense,  were  guillotined  en  masse.  The  commune  had 
clamored  for  blood,  and  its  leaders  and  the  Paris  mob  had 
often  menaced  the  convention  and  its  predecessors,  the  Con- 
stituent Assembly  and  the  Legislative  Assembly!  Following 
the  custom  of  the  times  there  was  in  this  instance  no  discrim- 
ination between  innocent  and  guilty.  After  the  suppression  of 
the  revolt  in  La  Vendee  there  had  been  great  slaughter  by 
order  of  the  revolutionary  tribunal.  Courier  and  others,  who 
had  directed  it,  were  brought  to  trial  and  he  and  others  exe- 
cuted.    Some  were  acquitted. 

On  Dec.  28,  1794,  the  Convention  changed  the  mode  of  pro- 
cedure before  the  revolutionary  tribunal  so  as  to  protect  the 
rights  of  the  accused  and  promote  justice.  The  Jacobin  club, 
which  had  done  so  much  to  promote  the  revolution  and  also 
the  reign  of  terror,  had  been  closed  by  order  of  the  Conven- 
tion a  few  days  before.  The  tremendous  energy  of  the  revo- 
lution was  not  manifested  merely  in  bloody  strife,  but  in  an 
intellectual  and  physical  activity  never  before  exhibited.  De- 
prived of  its  supplies  of  steel  and  saltpetre  from  foreign  ports 
by  war,  new  processes  were  invented,  steel  was  made  and  the 
cellars  of  Paris  were  made  to  yield  saltpetre  for  powder.  A 
system  of  signals  was  devised  by  which  communication  was 
had  almost  instantly  from  one  part  of  France  to  another.  A 
central  school  of  Public  Works  was  established,  which  after, 
wards  became  known  as  the  Polytechnic  School,  and  a  Normal 
School  to  teach  teachers,  together  with  other  institutes  for 
special  education.  On  Dec.  26,  1794,  a  commission  of  twenty- 
one  was  appointed  to  examine  into  the  conduct  of  ex-members 
of  the  Committees  of  Public  Works  and  General  Safety.  On 
March  2,  1795,  this  committee  reported  an  indictment  against 
Billaud,  Callot,  Barere  and  Vadier,  who  constituted  the  ultra 
revolutionary  faction  of  the  committee.  Their  arrest  was 
ordered  by  the  Convention,  and  soon  thereafter  the  excluded 


FRANXE  621 

Girondists  were  recalled  to  seats  in  the  Convention.  Seventy- 
three  representatives,  held  on  suspicion,  were  restored  to  office, 
and  on  March  8,  twenty-two  Girondists,  who  had  been  out- 
lawed, were  recalled.  But  the  days  of  blood  and  arbitrary 
punishments  were  not  over.  Distrust  still  lurked  everywhere. 
Billaud,  Callot,  Barere  and  Vadier,  were  ordered  by  the  com- 
mittee to  be  transported  at  once  without  trial.  Fouquier-Tin- 
ville  the  prosecutor  who  had  prosecuted  to  their  deaths  so 
many  illustrious  men  and  women,  Hermann  the  president  of 
the  court,  and  the  judges  and  jurors  who  had  condemned 
them,  were  themselves  brought  to  trial,  but  not  in  that  sum- 
mary manner  to  which  they  had  resorted.  Forty  days  were 
consumed  in  the  trial.  Fouquirer-Tinville,  Hermann  and 
fourteen  others  were  condemned  to  death  and  guillotined  on 
May  7,  1795.  In  the  southeast,  at  Lyons,  Marseilles,  Toulon 
and  elsewhere  the  reaction  took  a  more  violent  form,  and 
there  was  much  slaughtering  of  those  who  were  charged  with 
participation  in  the  reign  of  terror.  After  this  there  were 
bread  riots,  due  mainly  to  the  scarcity  of  provisions,  and  some 
summary  executions,  but  the  general  sentiment  was  opposed 
to  further  bloodshed.  A  decree  was  passed  abolishing  the 
death  penalty  except  as  to  the  emigrants  and  for  forgers  of 
assignats,  but  civil  commotion  was  not  yet  at  an  end.  On 
May  16  a  treaty  of  alliance  was  entered  into  with  the  States 
of  Holland,  and  Belgium  was  annexed  to  France.  On  April  5 
peace  was  made  with  Prussia  and  on  July  22,  with  Spain. 
Liberal  principles  had  fought  the  battles  of  France  as  well  as 
her  armies  and,  despite  internal  troubles,  France  had  come 
out  of  the  struggle  with  the  allied  monarchs  greatly  increased 
in  territory  and  power.  England  and  Austria  alone  remained 
in  active  hostility,  and  but  for  the  treason  of  Pichegru  the 
Austrian  army  might  have  been  crushed. 

On  August  22  a  new  constitution  was  adopted  by  the  Con- 
vention, subject  to  the  peoples'  approval.  Frenchmen  above 
the  age  of  twenty-one,  who  paid  a  direct  tax,  or  who  had 
fought  for  the  Republic  through  one  campaign  or  would  give 
three  days'  labor  to  the  government,  were  made  citizens.  It 
contained  a  declaration  not  only  of  the  rights  but  the  moral 


622  EVOLUTION  OF  GOVERNMENTS  AND  L.\WS 

duties  of  man.  Primary  meetings  were  to  choose  one  elector 
for  every  two  hundred  citizens.  Electoral  assemblies  then 
elected  the  legislative  body,  tribunals  and  officers  of  the  de- 
partments. The  Legislature  was  divided  into  the  Council  of 
five  hundred,  who  initiated  all  laws,  and  council  of  two  hun- 
dred and  fifty  Ancients  forty  years  old  and  upwards,  who 
might  veto  proposed  laws;  one-third  to  be  elected  each  year, 
and  taken  from  each  department  in  ratio  of  population.  The 
executive  power  was  placed  in  a  Directory  of  five  members, 
chosen  by  the  Councils,  one  to  be  elected  each  year,  under 
whom  should  be  responsible  ministers.  Freedom  of  the  press, 
of  commerce  and  industry  and  the  inviolability  of  the  home 
were  declared.  All  Frenchmen  who  had  abandoned  their 
country  were  forbidden  to  return,  and  their  goods  confiscated. 
It  was  estimated  that  more  than  30,000  royalists  had  left 
France.  Religious  toleration  was  decreed,  and  no  one  was  to 
be  compelled  to  contribute,  to  religious  worship,  nor  was  any 
payment  to  be  made  therefor  by  the  government.  On  Sept. 
23,  1875,  this  constitution  was  ratified  by  a  majority  of  50,000. 
At  the  riots  of  Oct.  5,  1795,  largely  the  work  of  royalists  and 
reactionists.  Napoleon  came  to  the  front  as  a  leader  of  the 
forces  of  the  Convention  and  dispersed  the  mob.  On  Oct. 
26,  1795,  the  Convention,  which  had  for  a  little  more  than 
three  years  steered  the  ship  of  state  amid  mutiny  through 
stormy  seas,  passed  out  of  existence,  and  the  new  Legisla- 
ture came  into  power. 

The  new  directory  chosen  by  the  Legislature  was  La  Reveil- 
lere-Lepeaux,  Carnot,  Rewbell,  Barras  and  Letourneur.  The 
issuing  of  assignats  had  gone  on  till  they  were  almost  worth- 
less. A  new  issue  of  three  billions  produced  only  twenty 
millions.  Resort  was  had  to  the  payment  of  taxes  in  kind, 
and  in  this  manner  wheat  was  obtained  for  the  relief  of  Paris. 
Forty-five  billions  of  assignats  were  issued,  and  besides  the 
genuine  the  country  was  flooded  with  counterfeits.  The  fall- 
ing values  of  assignats,  given  forced  currency,  and  the  insta- 
bility of  all  values  gave  great  opportunities  to  the  speculators, 
resulting  as  usual  in  corresponding  suffering  among  the  poor. 
A  striking  illustration  of  the  reduced  pace  at  which  state  trials 


FRANCE  623 

went  forward  was  in  that  oi  Babeuf,  who  had  instigated  an 
uprising  and  advocated  community  of  property,  which  began 
February  20,  1797  lasted  three  months  and  resulted  in  his 
sentence  to  death  with  one  other  person.  Seven  others  were 
sentenced  to  transportation  and  the  rest  acquitted.  The  reign 
of  terror  had  passed  away,  in  1796  the  civil  war  in  the  Vendee 
came  to  an  end,  and  Bonaparte  led  the  army  in  Italy.  Much 
blood  had  been  shed  by  order  of  the  revolutionary  convention, 
but  the  numbers  who  had  suffered  were  altogether  insignifi- 
cant as  compared  with  those  who  fell  in  the  bloody  wars  waged 
by  Napoleon.  Members  of  the  Convention  gave  up  their  lives 
as  sacrifices  to  the  good  of  France,  but  for  each  one  of  these 
many  thousands  fell  in  battle.  The  civilized  world  has  never 
ceased  to  condemn  the  excesses  of  the  revolution,  but  it  still 
applauds  the  wholly  indefensible  butcheries  of  war.  Much  of 
the  bloody  work  of  the  reign  oi  terror  resulted  from  too  in- 
tense devotion  to  the  cause  of  liberty.  Distrust  followed  the 
overthrow  of  the  monarchy,  which  had  ripened  and  rotted 
through  so  many  centuries.  If  moderation  of  language  could 
have  been  maintained,  much  crime  would  have  been  avoided. 
Intemperate  demands  for  the  blood  of  opponents  and  counter 
threats  caused  blood  to  flow  when  popular  tumults  occurred. 
Never  was  there  a  time  when  intemperate  words  led  to  bloody 
deeds  so  quickly  and  frequently.  But  the  heroic  work  of  those 
who  braved  death  at  the  guillotine  gave  an  impulse  to  govern- 
mental reform  which  can  hardly  be  measured.  The  peculiar 
sadness  of  these  executions  is  augmented  by  the  nobility  of 
soul  displayed  by  so  many  of  the  victims.  The  Girondists  and 
Madame  Roland  gained  a  pure  fame,  which  will  grow  in  lustre 
as  true  liberty  spreads  its  light  over  the  world.  Even  Danton, 
Robespierre  and  Saint  Just  were  sincere  republicans.  The 
great  lesson  of  the  reign  of  terror  is,  that  in  times  of  great 
excitement  intemperate  language  is  as  dangerous  as  sparks  in 
a  powder  house,  and  that  those  who  unjustly  take  the  lives 
of  others  may  expect  that  retributive  justice  will  soon  return 
upon  their  necks  the  unmerited  strokes  which  have  destroyed 
others.  Compared  with  blood  spilled  in  the  many  causeless 
wars  waged  by  the  kings  to  gratify  their  mere  personal  pride 


624  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

or  ambition,  all  the  blood  spilled  by  the  revolutionary  tribunals 
was  as  a  drop  in  a  great  tub  full.  But  the  blood  of  the  revolu- 
tion was  to  water  a  plant  of  incalculable  value  to  mankind, 
while  that  spilled  at  the  command  of  the  kings  was  not  only 
to  no  good  purpose,  but  passed  a  legacy  of  oppression  and 
hatred  down  from  generation  to  generation.  Europe  and 
America  claim  to  believe  and  follow  the  teachings  of  Christ, 
yet  the  savage  Mars,  the  war  God  of  ancient  Greece  and  Rome, 
still  holds  sway.  Kings  and  states  still  send  their  men  forth 
to  do  wholesale  murder  to  gratify  the  pride  and  ambition  of 
kings  and  rulers,  and  when  great  battles  are  fought  and  many 
thousands  meet  death,  and  many  more  thousands  live  in  the 
agony  of  mutilation,  the  multitude  applauds  and  the  fierce 
leaders  become  worshipped  as  heroes.  France  achieved  her 
true  and  great  glory  through  her  three  great  assemblies  and 
during  the  time  of  her  bloody  travail.  Napoleon  led  her 
back  into  the  old  train  of  Mars  and  watered  the  fields  of 
Europe  with  innocent  blood.  For  this  rulers  of  England  and 
Austria  especially  must  share  the  blame,  and  of  Prussia,  Spain 
and  Russia  also  a  part.  Napoleon  sought,  not  liberty  or  the 
happiness  of  the  people  of  France,  but  that  false  phantom, 
glory,  which  leads  so  many  to  the  grave  over  a  path  smoking 
with  pestilential  fumes  of  war  and  reeking  with  the  corrup- 
tion and  miseries  it  engenders.  Europe  has  neither  accepted 
the  rich  fruits  of  the  deliberations  of  the  patriots  of  that 
memorable  period,  nor  ceased  to  worship  Mars,  Woden  and 
Thor.  These  are  still  the  gods  of  the  palaces  and  many  of 
the  homes  of  the  most  advanced  nations  of  Europe,  in  fact 
though  not  in  name.  The  time  of  intense  activity  of  the  pure 
republican  sentiment  ended  with  the  Convention.  The  new 
legislative  chambers  were  largely  reactionary.  With  the  ex- 
ception of  Carnot,  that  most  able  and  worthy  patriot,  the 
Directory  was  made  up  of  poor  or  bad  material.  Napoleon 
was  already  plotting  to  gain  arbitrary  power,  though  pro- 
fessing the  most  profound  devotion  to  republican  principles. 
He  sent  his  emissaries  to  Paris  to  further  his  ends.  The 
army  was  rapidly  becoming  the  ruling  force  of  the  state. 
The  clubs,  which  had  wielded  such  vast  influence,  had  lost 


FRANCE  625 

their  hold  on  the  people,  and  the  most  powerful  ones  had 
been  closed  and  dispersed.  The  treason  of  Pichegru,  which 
had  come  to  light,  was  made  a  pretext  by  Barras,  La  Reveil- 
lere  and  Rewbell  for  a  coiisp  d'etat.  On  Aug.  18,  1797  the 
Directory  addressed  a  message  to  the  Five  Hundred,  calling 
attention  to  plots  and  violations  of  the  constitution.  It  was 
referred  to  a  special  committee  to  direct  prosecutions  against 
all  plotters  against  the  constitution  and  soldiers  holding  politi- 
cal councils.  On  the  night  of  September  3  the  Tuileries 
was  surrounded  by  12,000  soldiers  with  forty  cannon.  The 
assembly  was  prevented  from  holding  a  session  the  next  day, 
and  Barthelemi,  one  of  the  Directory  opposed  to  the  coup, 
was  arrested,  while  Carnot  escaped  and  fled  to  Switzerland. 
Thirty  members  of  the  Council  of  Ancients  attempted  to  hold 
a  session  at  the  house  of  their  president  and  were  arrested 
and  imprisoned  in  the  Temple.  Eighty-five  of  the  Five  Hun- 
dred, holding  a  session  near  by,  were  dispersed  and  many  of 
them  arrested.  A  session  of  those  members  of  the  councils 
favorable  to  the  three  Directors,  the  Triumvirs,  was  then  held. 
A  resolution  in  thirty-nine  articles  was  voted,  annulling  the 
elections  in  fifty-one  departments  as  being  ialsified  by  royalist 
emissaries,  thus  destroying  the  opposing  majority.  The  po- 
litical rights  which  had  been  restored  to  the  relations  of  emi- 
grants were  taken  from  them.  Forty-two  members  of  the 
Five  Hundred  and  eleven  of  the  Ancients  were  ordered  to  be 
transported  w^ith  Carnot,  Barthelemi  and  other  prominent 
men,  including  Pichegru.  The  law  recalling  transported 
priests  was  repealed  and  all  newspapers  were  placed  under 
police  inspection.  The  law  against  clubs  was  repealed,  though 
they  were  forbidden  to  attack  the  constitution.  These  reso- 
lutions were  first  passed  by  the  Five  Hundred  and  then  by  the 
Ancients  on  September  6.  The  directory  was  filled  by 
adding  Merlin  and  Frangois.  On  October  17  Napoleon 
concluded  a  treaty  of  peace  with  Austria,  contrary  to  the  in- 
structions of  the  Directory,  but  which  they  ratified.  This 
left  England  as  the  only  country  with  which  war  still  con- 
tinued. The  Directory  made  Napoleon  commander-in-chief 
of  the  army  of  England,  and  he  came  to  Paris,  where  he 


626  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

affected  modesty  and  was  accorded  great  distinction.     His 
next  project  was  the  invasion  of  Egypt. 

When  the  elections  of  1798  were  held,  the  Directory  again 
interpased  to  maintain  their  ascendency  in  the  Councils  and 
annulled  such  of  the  elections  as  they  deemed  most  unfavora- 
ble.    Treilhord  succeeded  Frangois  on  the  Directory.     While 
Napoleon  was  prosecuting  his  war  in  Egypt,  public  senti- 
ment in  France  grew  hostile  to  the  Directory,  and  the  elections 
of  1799  were  carried  by  the  reactionists.     Sieyes  succeeded 
Rewbell  in  the  Directory.    The  newly  elected  one-third  of  the 
Councils  infused  life  and  independence  into  them.     Liberty 
of  the  press  and  of  assemblage  and  free  elections  were  order- 
ed.    Conscriptions  were  ordered  and  a  forced  loan  of  one 
hundred  millions  from  the  well-to-do  classes.     War  was  re- 
newed and  went  on  in  Italy,  Switzerland  and  the  low  coun- 
tries against  the  forces  of  Austria,  England  and  Russia,  as 
well  as  in  Egypt,  with  varying  success.     Napoleon  left  his 
army  in  Egypt  and  arrived  in  Paris  Oct.  25,  1799,  where  he 
at  once  commenced  to  plot  to  overthrow  the  Directory  and 
assume  dictatorial  power,  backed  by  his  military   followers.- 
The  pretext  of  a  Jacobin  plot  was  invented.     A  decree  of  the 
Council  of  Ancients  removing  the  session  to  St.  Cloud  was 
obtained,  and  Bonaparte  was  commissioned  to  command  the 
military  forces  and  execute  the  decree.    The  Council  of  Five 
Hundred  met  four  hours  later  and  were  disinclined  to  go  to 
St.  Cloud,  but  Lucien  Bonaparte,  the  president,  ruled  that  the 
matter  could  not  be  discussed  till  next  day.     Three  of  the 
Directory  resigned.     Gohier  and  Moulin,  the  remaining  di- 
rectors, who  remained  steadfast  in  support  of  the  constitution, 
were  kept  confined  in  the  directoral  residence  in  Luxembourg 
by  troops  under  Moreau,  who  followed  Napoleon.     The  lead- 
ers of  the  Councils  met  at  night  with  Napoleon  and  Sieyes, 
when  Nopoleon  declared  that  the  constitution  must  be  changed 
and  a  temporary  dictatorship  established.     There  was  also  a 
meeting  of  representatives  opposed  to  his  schemes  to  devise 
means  of  resistance.     Nov.  10,  1799  the  two  councils  met  at 
St.  Cloud.     A  letter  from  the  secretary  general  of  the  Direc- 
tory was  read  announcing  the  resignation  of  ifour  directors. 


FRANCE  627 

though  neither  Gohier  or  MouHns  had  resigned.  Napoleon 
appeared  in  the  Council  of  the  Ancients  and  made  a  speech, 
in  which  he  talked  of  liberty  and  equality,  while  he  demanded 
the  dictatorship.  He  then  went  to  the  Five  Hundred  and  en- 
tered, escorted  by  some  of  the  legislative  guard.  Being  met  by 
protests  at  the  appearance  of  swords  and  bayonets  in  the 
Council,  he  was  taken  from  the  hall  by  General  Lefevre  and 
the  soldiers.  Then  Lucien  Bonaparte  went  out  and  addressed 
the  troops  as  president  of  the  Council  in  the  interest  of  his 
brother,  after  which  Murat  led  in  the  genadiers,  who  drove 
the  representatives  from  the  hall.  At  nine  that  night  Lucien 
assembled  thirty  of  the  members  of  the  Five  Hundred,  who 
assumed  to  be  a  quorum  and  approved  the  course  taken  by 
Napoleon  and  the  troops.  Three  consuls  were  nominated, 
Napoleon,  Sieyes  and  Roger-Ducos.  All  swore  to  support  the 
republic.  Two  commissions  to  assist  the  consuls  in  changing 
the  constitution  were  chosen,  and  the  exclusion  of  fifty-seven 
of  the  representatives  and  an  adjournment  of  the  Councils 
for  three  months  was  ordered.  This  order  was  ratified  by  the 
Ancients.  The  new  consuls  professed  devotion  to  the  republic 
and  to  liberty.  Napoleon  was  popularly  looked  on  as  a  Wash- 
ington, but  at  best  he  was  one  of  the  coldest  of  military  des- 
pots. The  adoration  of  the  multitude  was  mainly  based  on 
the  ancient  worship  of  the  war  god,  as  whose  representative 
Napoleon  was  acknowledged  and  glorified.  The  decree  which 
formed  the  provisional  consulate  invested  them  with  full 
power  and  charged  them  to  restore  order  and  peace.  Two 
commissions  of  twenty-five  members  each  took  the  place  of 
the  Councils,  and  their  powers  were  to  continue  three  Months 
till  the  Councils  should  meet  again.  Napoleon's  great  strength 
lay  in  his  judgment  of  the  capacities  of  men  and  in  his  ability 
to  have  them  carry  out  his  will.  He  at  once  selected  as  his 
principal  ministers  three  men  of  great  executive  ability.  Tal- 
leyrand for  foreign  affairs,  Berthier  for  war  and  Gaudin  for 
finance.  Many  political  prisoners  were  released,  but  the  sale 
of  the  goods  of  the  emigrants  was  confirmed.  On  November 
16  a  harsh  measure  was  adopted,  by  which  thirty-seven  citi- 
zens were  arbitrarily  transported  and  twenty  imprisoned  on 


628  EVOLUTION  OF  GOVERNMENTS  AND  K^WYS 

the  Isle  de  Ri.  Some  were  guilty  of  bloody  crimes,  but  others 
only  of  having  opposed  Napoleon's  usurpation  of  power.  On 
Dec.  15,  1799,  the  new  constitution,  mainly  the  work  of  Sieyes, 
was  made  public.  It  placed  the  executive  power  in  three  con- 
suls, to  hold  for  ten  years,  and  eligible  to  reelection.  Of  these 
the  first  alone  could  promulgate  laws,  appoint  ministers,  am- 
bassadors, and  officers  generally.  The  second  and  third  con- 
suls could  consult  with,  but  not  control  the  action  of,  the  first. 
500,000  electors  chosen  by  universal  suffrage  elected  50,000 
persons,  who  in  turn  chose  5,000  names  from  which  a  senate 
made  up  of  eighty  life  members  chose  the  consuls,  tribunes 
and  legislature.  The  legislative  body  was  composed  of  three 
hundred  members.  A  council  of  state  was  charged  with  draft- 
ing laws,  its  members  to  be  named  by  the  first  consul.  The 
laws  thus  formed  were  to  be  presented  to  a  tribunate  of  one 
hundred  members,  which  after  discussion  was  to  pass  them  on 
in  the  hands  of  three  orators,  who  should  discuss  them  against 
three  councillors  of  state,  nominated  by  the  consuls,  in  the 
presence  of  the  legislature,  which  should  then  adopt  or  reject 
the  proposed  laws  by  secret  ballot  without  debate.  Vacancies 
in  the  senate  were  filled  by  the  senate  from  a  list  of  three 
candidates  for  each  vacancy  furnished  one  each  by  the  legis- 
lature, the  tribunate  and  first  consul.  The  senate  had  power 
to  veto  any  law  or  governmental  act  it  deemed  unconstitu- 
tional. Municipal  officers  were  to  be  taken  from  the  first  list 
of  500,000  electors,  departmental  from  the  second  of  50,000 
and  national  from  the  third.  There  was  no  declaration  of 
the  rights  of  man  and  no  guaranty  of  liberty  of  the  press. 
Personal  liberty  only  was  assured.  The  new  constitution  was 
adopted  by  a  large,  almost  unanimous,  vote.  Napoleon,  Cam- 
baceres  and  Lebrun  were  chosen  consuls.  The  legislative  ses- 
sion of  the  new  government  was  opened  Jan.  3,  1800.  A  law 
w^as  passed  abolishing  the  cantonal  municipalities  and  substi- 
tuting larger  units  called  arrondissements.  Officers  were  ap- 
pointed by  the  government  instead  of  chosen  by  the  people. 
Over  the  departments  prefects  were  appointed  and  subprefects 
over  the  arrondissements,  and  the  commune  had  a  mayor 
named  by  the  prefect.     Corresponding  changes  were  made  in 


FRANCE  629 

the  judicial  system,  and  jurors  were  named  by  the  prefects. 
All  judicial  officers  except  justices  of  the  peace  were  appoint- 
ed. Under  this  system  France  was  again  ruled  by  one  head. 
On  Feb.  9,  1801,  peace  was  made  with  Austria.  July  16,  1801 
a  concordat  with  the  Pope  reestablished  the  Catholic  as  the 
religion  of  state  in  France,  and  on  March  25,  1802,  a  treaty  of 
peace  was  concluded  with  England.  The  emigrants,  of  whom 
there  were  said  to  have  been  145,000,  were  allowed  to  return 
and  restored  to  such  of  their  property  as  had  not  been  sold. 
The  educational  scheme  of  the  Convention  was  replaced  by 
another,  which  failed  to  give  general  primary  education,  but 
did  provide  military  schools.  By  vote  of  the  people  Napo- 
leon's term  of  office  was  extended  for  the  term  of  his  life. 
La  Fayette,  who  after  long  confinement  in  Austrian  prisons 
had  finally  returned  to  France,  voted  no,  but  very  few  others 
had  the  courage  to  do  so.  There  was  a  brief  period  of  peace 
and  prosperity,  which  unfortunately  soon  came  to  an  end 
through  the  fault  of  bad  rulers  in  France  and  England.  In 
1803  that  long  and  fearful  war  commenced,  which  was  to 
cause  such  frightful  sufferings  and  loss  of  life.  The  year  1804 
witnessed  the  completion  of  the  Code,  which  bears  the  name  of 
Napoleon,  and  for  which  he  claimed  the  credit,  but  it  was  of 
course  mainly  the  work  of  lawyers,  and  most  of  the  material 
for  it  had  been  prepared  by  the  Convention.  (A  summary  of 
the  provisions  of  this  Code  with  its  modifications  contained  in 
the  Civil  Code  of  France  will  be  found  in  the  Appendix.) 
This  great  work  became  a  model  followed  by  neighboring 
states  in  the  codification  of  their  laws,  and  presents  system- 
atically arranged  and  concisely  stated  the  civil  law  of  France. 
On  May  18,  1804,  Napoleon,  having  obtained  the  sanction  of 
the  Senate,  was  proclaimed  Emperor  with  succession  in  his 
heirs,  a  civil  list  of  25,000,000  and  the  use  of  the  royal  palaces 
and  estates.  With  the  advent  of  Napoleon  to  power  the  in- 
ternal struggles  of  parties,  clubs  and  factions  soon  came  to  an 
end.  He  introduced  order  and  system  and  carried  on  useful 
public  works.  In  the  collection  of  the  revenue  there  was  thor- 
oughness and  in  its  expenditure  economy.  Restored  order  and 
prosperity  were  placed  to  his  credit  and  gladly  accepted.     But 


630  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

this  gain  was  at  the  expense  of  a  mihtary  despotism,  in  which 
the  blood  and  treasure,  the  peace  and  happiness  of  a  great  na- 
tion weighed  as  nothing  against  the  ambition  and  the  criminal 
folly  of  a  single  heartless  despot.  Thenceforth  the  young  men 
of  France  were  called  from  their  homes  to  be  sacrificed  to  the 
fierce  war  god,  whose  high  priest  was  Napoleon.  Despotism 
in  France  and  despotism  in  England,  Austria,  Prussia,  Spain 
and  Ru'ssia  must  be  charged  with  the  lives  of  the  millions  who 
were  slain  in  the  long  struggle,  which  deluged  Europe  with 
blood  till  Napoleon's  fall  at  Waterloo. 

With  these  long  and  fearful  wars  and  the  bloody  battles 
which  gave  Napoleon  such  renown  as  a  military  commander 
we  have  nothing  to  do,  save  to  call  attention  to  the  frightful 
suffering  they  caused  and  the  needlessness  of  them  all.  Never 
was  there  a  more  wanton  crime  committed  against  a  people 
who  had  confided  their  destines  to  a  ruler  than  that  of  Na- 
poleon in  leading  a  French  army  into  Russia  in  1812  to  perish 
v^rithout  a  cause.  The  hundreds  of  thousands  of  lives,  sacri- 
ficed in  battle  or  to  the  rigors  of  a  severe  northern  winter,  were 
offerings  to  the  war  god  and  chargeable  to  Napoleon.  From 
this  time  on  disasters  multiplied,  and  by  the  winter  of  18 14 
France  was  literally  drained  of  young  men  capable  of  mili- 
tary service,  and  the  vast  accumulation  of  arms  and  military 
stores,  which  had  been  provided  with  so  much  care,  was  in  the 
hands  of  the  enemy  in  Italy  and  Germany.  Never  in  all  the 
history  of  France  was  there  a  stronger  illustration  of  the 
folly  of  entrusting  the  power  to  make  war  to  a  single  man. 
Never  did  a  despot  live  who  cared  less  for  human  life  or 
human  happiness  than  Napoleon.  His  mad  desire  for  military 
glory  and  conquest  dominated  every  act  and  doomed  to  an 
untimely  death  most  of  a  generation  of  brave  men.  So  long 
as  the  young  are  taught  to  admire  and  emulate  the  conduct  of 
such  human  monsters,  and  to  look  on  war  as  the  avenue 
through  which  fame  and  glory  must  be  sought,  so  long  will 
humanity  suffer  the  horrors  and  miseries  of  needless  wars. 
When  murdering  by  wholesale  shall  be  viewed  in  its  true  light, 
as  private  murder  now  is,  and  when  the  duels  of  nations  shall 
be  weighed  as  private  duels  are,  the  world  may  breathe  a 


FRANCE  631 

purer  air  and  the  worship  of  Mars  give  way  to  the  spirit  of 
genuine  Christianity. 

Exhausted  France  could  oppose  no  effectual  resistance  to 
the  allied  powers,  who,  profiting  by  the  lesson  so  often  taught 
by  Napoleon  that  time  is  of  prime  importance  in  military 
movements,  pushed  steadily  forward  without  allowing  time 
to  Napoleon  to  concentrate  the  scattered  remnants  of  his 
forces  or  to  organize  and  equip  the  few  new  recruits  France 
yet  could  furnish.  On  March  31,  1814  the  allies  entered 
Paris.  They  demanded  the  overthrow  of  Napoleon.  On 
April  2nd  the  remnant  of  the  Senate  decreed  the  deposition  o;f 
Napoleon  and  his  family ;  on  the  next  day  the  legislative  body 
confirmed  the  decree,  and  on  the  6th  Napoleon  abdicated.  The 
allies  allowed  him  to  retain  the  title  of  Emperor  with  the 
island  of  Elba  as  his  empire,  and  his  wife  Marie  Louise  of 
Austria  was  given  the  duchy  of  Parma.  Ample  pensions  were 
allowed  to  him  and  the  members  of  his  family.  A  new  con- 
stitution was  formed,  afterward  modified,  and  Louis  XVIII 
was  made  king.  The  executive  power  and  the  initiative  of  all 
laws  was  conferred  on  the  king.  The  peerage  was  restored, 
a  house  of  lords  taking  the  place  of  the  Senate,  with  unlimited 
power  of  appointment  in  the  king.  The  legislative  power  was 
confided  to  the  King,  Senate  and  Chamber  of  Deputies.  The 
Constitution  sanctioned  individual  liberty,  freedom  of  wor- 
ship and  of  the  press,  confirmed  the  sale  of  national  property, 
the  public  debt,  and  accorded  amnesty  for  acts  committed  dur- 
ing the  revolution.  The  senate  was  to  be  composed  of  not 
less  than  one  hundred  and  fifty  nor  more  than  two  hundred 
members,  chosen  by  the  King,  but  one  hundred  of  the  senators 
then  in  office  were  to  be  continued.  The  Catholic  was  retained 
as  the  religion  of  state.  The  right  of  suffrage  was  greatly 
restricted.  Electors  were  required  to  be  thirty  years  old  and 
pay  an  indirect  tax  of  three  hundred  francs.  Deputies  were 
to  be  elected  for  five  years  and  one-fifth  renewed  each  year. 
The  right  to  make  war  and  peace  was  vested  in  the  king,  with 
that  of  making  all  arrangements  necessary  for  the  execution 
of  the  laws  and  the  safety  of  the  state.  A  responsible  minis- 
try was  established.     Conscriptions  were  to  be  regulated  by 


6.32     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

law.  The  Constitution  was  dated  from  the  nineteenth  year  of 
the  reign  of  Louis  XVIIl,  as  if  the  repubhc  and  empire  had 
never  existed,  and  was  called  the  Constitutional  Charter,  as  if 
granted  by  grace  of  the  king.  The  Charter  was  proclaimed 
June  4,  and  eighty-three  senators  and  forty  dukes  from  the 
nobility  of  the  old  regime  were  made  members  of  the  new 
house  of  peers.  The  rule  of  the  Bourbons,  which  again  placed 
in  authority  those  who  had  so  long  been  the  enemies  of 
France,  though  at  first  accepted  with  hope,  because  of  the  in- 
tense longing  of  the  people  for  peace  and  security,  soon  pro- 
duced irritation  everywhere.  The  King  and  his  followers  were 
wanting  both  in  moral  purposes  and  in  business  capacity.  The 
treaty  of  Paris,  which  diminished  the  territory  of  France,  was 
a  source  of  national  humiliation.  Discontent  grew,  and  Na- 
poleon, learning  the  situation,  set  sail  on  Feb.  26,  181 5,  with 
about  1,100  soldiers  and  landed  near  Cannes  on  March  i. 
He  was  received  everywhere  with  enthusiasm,  the  soldiers 
sent  to  oppose  him  deserting  the  Bourbons  and  joining  his 
little  army.  On  March  19  he  reached  Fontainbleau,  and  the 
Bourbons  fled.  On  the  20th  he  entered  Paris  and  took  pos- 
session of  the  Tuileries.  Again  the  Constitution  was  changed. 
Napoleon  seeking  the  aid  of  the  republican  sentiment.  It  was 
in  main  the  Charter  of  Louis  XVIII,  the  principal  change  be- 
ing in  the  lower  house,  which  was  called  House  of  Represen- 
tatives, and  in  the  mode  of  election.  Primary  meetings  were 
to  nominate  for  universal  suffrage  100,000  electors  for  life, 
iforming  two  classes,  one  of  the  departments  awd  the  other 
of  the  districts,  each  of  which  were  to  elect  representatives  at 
least'  thirty  years  of  age.  The  peerage  was  declared  heredi- 
tary. This  constitution,  called  the  supplementary  act,  was 
ratified  by  the  people.  The  two  chambers  met  on  June  3  and 
Napoleon  set  out  on  June  20  to  be  defeated  at  Waterloo. 
The  representatives  of  the  people  again  had  to  face  the  situa- 
tion of  submission  to  foreign  powers.  In  the  Chamber  of 
Representatives  Lucien  Bonaparte  strove  to  maintain  Napol- 
eon in  power.  To  his  appeal  La  Fayette  answered :  "Prince, 
you  slander  the  nation.  It  is  not  for  forsaking  Napoleon  that 
history  will  blame  France,  but  ifor  following  him  so  long. 


FRANCE  633 

She  followed  him  in  the  Egyptian  sands  and  the  Russian  des- 
erts, on  fifty  fields  of  battle,  in  reverses  as  in  his  triumphs. 
Fidelity  too  long  continued  has  cost  France  three  million 
men!"  The  net  result  of  all  this  enormous  sacrifice  was,  that 
exhausted  France  lay  at  the  mercy  of  its  many  foes,  some  or 
all  of  whom  might  have  been  friends  if  Napoleon  had  striven 
for  peace  with  half  the  zeal  he  prosecuted  war.  Napoleon 
again  abdicated,  proclaiming  his  son  emperor.  On  July  4  the 
representatives  signed  the  capitulation,  turning  the  destinies 
of  France  over  to  the  allies,  but  on  the  same  day  a  declaration 
of  rights  was  presented  to  the  House  which  was  adopted  on 
the  next.  On  July  7  Prussians  and  EngHsh  took  possession  of 
Paris  and  Louis  XVIII  entered  it  the  next  day.  The  inunda- 
tion of  foreign  soldiers,  who  pillaged  and  preyed  on  France, 
was  overwhelming,  amounting  to  as  high  as  1,240,000  men. 
The  French  army  was  disbanded  and  disorder,  pillaging,  mur- 
der and  excesses  of  all  sorts  prevailed  over  the  country.  On 
July  15  Napoleon  surrendered  to  the  English  and  went  to 
Plymouth,  expecting  to  be  allowed  to  live  in  retirement,  but 
he  was  sent  Aug.  8  to  St.  Helena  as  a  captive.  The  elections 
in  181 5  were  carried  by  the  royalists,  and  a  law  was  passed 
creating  special  courts  for  the  trial  of  political  offenders.  The 
peerage  was  reconstructed  by  the  addition  of  one  hundred 
and  ninety-four  peers,  declared  hereditary.  Louis  reigned 
as  a  constitutional  monarch  in  comparative  peace.  In  1819 
the  electoral  laws  were  revised  so  as  to  require  the  election  of 
all  the  deputies  once  in  seven  years,  instead  of  a  portion  each 
year,  and  increasing  the  number.  The  policy  of  a  protective 
tariff  on  foreign  goods  was  adopted,  and  with  peace  and  in- 
dustry France  advanced  in  prosperity.  The  many-sided  civ- 
ilization, contributed  to  by  the  millions  of  people,  moved 
forward.  Political  parties  developed,  but  there  were  no  great 
out-breaks  causing  bloodshed.  Louis  XVIII  passed  away  on 
Sept.  16,  1824,  and  Charles  X  took  his  place.  The  rule  of 
Louis  XVIII  was  not  that  of  a  Bourbon  despot,  but  of  a 
constitutional  monarch,  governed  in  great  measure  by  the 
principles  developed  by  the  revolution.  Charles  observed  the 
restrictions  on  his  power  imposed  by  the  charter  in  the  main 


634  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

until  1829,  when  he  named  a  very  obnoxious  ministry.  On 
July  25  four  ordinances  were  signed  by  the  king  and  counter- 
signed by  the  ministers,  the  first  suspended  the  freedom  of  the 
press,  the  second  dissolved  the  Chamber  of  Deputies,  the 
third  reduced  the  number  of  deputies  and  altered  the  electoral 
law,  and  the  fourth  convened  the  new  electoral  college  on 
Sept.  6  and  13.  When  these  arbitrary  acts  became  known 
Paris  was  again  in  a  ferment.  On  July  28  the  streets  were 
barricaded,  the  tocsin  was  sounded  and  all  Paris  rose  to  resist 
the  king's  usurpation  of  authority.  There  was  fighting  in  the 
streets  between  the  troops  and  the  citizens,  but  many  of  the 
soldiers  were  disposed  to  side  with  the  people.  Though  5300 
persons  were  killed  or  wounded  in  the  fight,  there  were  no 
exhibitions  of  such  barbarity  and  blood  thirstiness  as  in  the 
revolution  of  1789.  The  people  realized  that  the  soldiers 
fought  ;from  a  sense  of  duty,  and  the  soldiers  really  felt  in 
sympathy  with  the  people.  On  the  29th  two  regiments  went 
over  and  joined  them.  The  king  was  without  efficient  support 
and  left  the  city.  La  Fayette,  that  grand  character,  who  had 
taken  part  in  the  stormy  scenes  of  the  American  Revolution 
and  of  1789,  again  came  to  the  front  in  command  of  the 
national  guard  of  France.  The  King  abdicated  and  left 
France  on  Aug.  3,  1830.  On  the  same  day  the  Legislature 
convened,  two  hundred  and  forty  deputies  and  sixty  peers  be- 
ing present.  The  Constitution  was  again  changed,  the  Cath- 
olic religion  ceased  to  be  recognized  as  the  religion  of  state, 
censorship  of  the  press  was  abolished  and  its  inviolability  es- 
tablished, commissions  and  extraordinary  courts  for  the  trial 
of  offenders  were  prohibited,  the  tricolored  standard  was 
resumed,  the  age  of  deputies  was  fixed  at  thirty  to  serve  five 
years,  hereditary  peerage  and  all  peerages  created  by  Charles 
X  were  abolished.  The  throne  was  declared  vacant  and  the 
Duke  of  Orleans  was  chosen  king,  on  condition  of  acceptance 
of  the  amended  Charter.  Though  there  was  much  republican 
sentiment,  many  ardent  republicans  like  La  Fayette  deemed  it 
wisest  to  choose  a  king.  Louis  Philippe  came  to  the  throne 
as  a  citizen  king.  The  difference  between  his  case  and  that 
of  ancient  monarchs  was  expressed  by  M.  Thiers,  who  took 


FRANXE  635 

part  in  this  revolution,  in  the  words,  "The  king  reigns,  he  does 
not  govern."  Louis  PhiHppe  was  n.ot  content  however  to 
merely  reign,  he  sought  also  to  govern.  On  June  5,  1832  there 
was  an  outbreak  in  Paris  which  assumed  considerable  propor- 
tions and  seemed  formidable,  but  on  the  next  day  it  was  sup- 
pressed. Many  of  those  implicated  were  arrested  and  tried. 
Some  were  sentenced  and  others  acquitted,  but  there  were  no 
executions,  thus  showing  a  marked  advance  from  the  bloody 
days.  Though  Louis  Philippe  was  charged  with  weakness  in 
his  foreign  policy,  he  avoided  disastrous  foreign  wars,  and 
France  prospered  in  peace.  His  reign  witnessed  the  introduc- 
tion of  the  railroad  and  telegraph  and  marked  advance  in 
manufactures  and  commerce.  Though  there  were  many  at- 
tempts to  take  the  King's  life,  he  always  exhibited  courage 
when  attacked  and  clemency  toward  those  implicated.  Noth- 
ing more  surely  proves  the  advancing  moral  tone  of  the  people 
than  the  improved  administration  of  justice.  Trials  no  longer 
meant  mere  formal  procedure  preliminary  to  bloody  execu- 
tions, but  there  was  a  decided  leaning  toward  clemency,  and 
even  those  guilty  of  political  offenses  were  sometimes  acquit- 
ted. The  King  no  longer  used  the  courts  as  tools  for  the  exe- 
cution of  his  arbitrary  will.  The  public  were  becoming  ac- 
customed to  submit  to  law  and  reject  claims  to  arbitrary  power. 
On  Feb.  24,  1848,  as  a  result  of  an  order  prohibiting  the 
holding  of  a  banquet,  all  Paris  rose  against  Philippe,  who  in 
the  morning  believed  himself  secure,  yet  abdicated  at  noon  in 
favor  of  his  grandson.  Barricades  were  thrown  up  all  over 
the  city.  The  national  guard,  when  summoned,  sided  with 
the  people,  and  the  regular  troops,  though  numerous,  were 
not  able  to  contend  with  the  mob.  Public  sentiment  was  so 
strong  against  the  king  and  his  ministers  that  a  revolution 
was  effected  with  very  little  bloodshed.  A  provisional  govern- 
ment was  formed  by  naming  a  new  ministry,  the  Chambers 
were  dissolved  and  an  election  ordered  to  choose  a  new  Na- 
tional Assembly.  The  ministry  were  confronted  with  con- 
ditions urgently  demanding  relief.  Great  numbers  of  laborers 
were  unemployed  and  in  want.  They  looked  to  the  state  to 
afford  them  relief.     On  February  25  a  workman  rushed  into 


636         .    EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  council  chamber  with  a  petition  crying  for,  "the  right  to 
labor  in  an  hour."  "Such  is  the  will  of  the  people."  This  was^ 
not  a  very  disorderly  demand,  though  difficult  to  comply  with 
on  a  large  scale  under  such  circumstances.  The  election  for 
members  of  the  National  Assembly  was  finally  fixed  for  April 
23,  and  nine  hundred  representatives  were  to  be  chosen  by 
departments  and  to  receive  twenty-live  francs  per  day.  All 
titles  of  nobility  were  abolished.  The  political  discussions 
preceding  the  election,  disclosed  a  great  diversity  of  ideas  and 
schemes  for  the  betterment  of  social  conditions.  The  relations 
of  labor  and  capital  and  the  fundamental  questions  concerning 
rights  of  property  were  much  discussed,  and  socialists  and 
anarchists  advanced  their  theories.  The  ministry  established 
banks  of  discount  and  public  warehouses  and  resorted  again 
to  paper  money.  Great  numbers  of  laborers  were  employed 
on  public  works,  the  list  including  by  the  end  of  April  nearly 
100,000.  On  April  2y,  1848,  the  government  proclaimed  the 
abolition  of  slavery,  including  the  colony  of  Algiers.  The 
elections  passed  ofif  peaceably  with  a  few  exceptions,  the  new 
National  Assembly  convened  on  May  4  and  on  the  8th  ap- 
proved the  conduct  of  the  provisional  government.  On  June 
23  rioting  commenced  in  Paris  and  barricades  were  erected. 
No  very  well  defined  purpose  animated  the  rioters,  but  they 
were  led  by  agitators  who. opposed  the  measures  of  the  As- 
sembly, and  a  great  number  of  needy  laboring  men  followed 
them.  Serious  conflicts  ensued,  continuing  through  the  24th 
and  25th,  when  the  rioters  were  finally  overcome  by  the 
troops.  More  than  1500  persons  were  killed  and  2500 
wounded  in  this  conflict,  which  was  wholly  wanting  in  good 
results,  and  was  followed  by  the  arrest,  imprisonment  and 
trial  of  a  great  number  of  persons  who  took  part  in  it.  It 
is  encouraging  to  note  that  the  days  of  summary  and  bloody 
punishments  were  over,  some  were  transported  and  some  im- 
prisoned after  trial,  but  none  were  executed.  On  Nov.  4, 
1848  the  Assembly  completed  its  work  in  the  adoption  of  a 
new  Constitution,  which  was  read  to  the  people  in  the  Place 
de  la  Concorde  on  November  12.  It  provided  for  a  President 
to  be  elected  for  four  years  by  the  people  and  ineligible  to  re- 


FRANCE  637 

•election  till  after  ;four  years  more.  The  Assembly  of  750 
members  was  to  sit  in  a  single  body  with  power  to  choose  a 
council  of  state  to  hold  for  a  term  of  six  years,  and  to  draft 
all  laws.  Magistrates  were  to  be  named  by  the  executive 
power,  mayors  by  the  town  councils,  and  justices  of  the  peace 
elected  by  the  people.  Among  the  clauses  of  the  Constitution 
exhibiting  an  advanced  appreciation  of  the  obligations  of  the 
state  to  its  weaker  members  and  to  the  outer  world  were  the 
following:  "The  French  Republic  respects  foreign  nationali- 
ties ...  it  will  never  employ  its  powers  against  the  liberty 
of  any  people."  'The  republic  should  by  fraternal  assistance 
insure  the  support  of  its  needy  citizens  either  by  procuring 
them  work  to  the  extent  o;f  its  means  or  by  giving  the  means 
of  existence  to  those  who  are  unable  to  work  and  have  no 
family."  The  duty  of  the  state  to  furnish  education  was 
recognized. 

The  election  was  fixed  for  Dec.  10,  1848,  and  resulted  in 
the  choice  of  Louis  Napoleon  Bonaparte  as  President.  On 
December  20  he  took  the  oath  of  office,  professing  devotion  to 
the  cause  of  liberty  and  the  principles  of  the  republic.  The 
Constituent  Assembly  held  its  last  session  on  May  27,  1849  and 
the  new  Legislative  Assembly  opened  on  the  next  day.  Louis 
Napoleon  began  his  career  as  President  by  overturning  the  lit- 
tle Republic  of  Rome,  which  had  driven  out  the  Pope,  and  re- 
storing him  to  his  temporal  possessions,  in  violation  of  the 
Constitution.  On  March  15,  1850  the  Assembly  passed  an 
educational  law  which  gave  to  the  Catholic  clergy  the  principal 
supervision  of  primary  schools.  The  election  law  was  chang- 
ed so  as  to  require  a  three  years'  residence  to  qualify  a  voter. 
This  disfranchised  a  large  portion  of  the  laborers.  On  Dec. 
2,  1 85 1,  Napoleon,  having  gathered  about  himself  and  placed 
over  the  army  men  on  whom  he  could  rely,  caused  the  arrest  of 
sixteen  of  the  most  prominent  members  of  the  Assembly, 
without  any  lawful  pretext,  and  issued  a  decree  and  three 
proclamations.  The  decree  dissolved  the  Assembly  and  re- 
stored universal  suffrage.  Paris  was  declared  in  a  state  of 
siege.  One  proclamation  accused  the  Assembly  of  plots  and 
appealed  to  the  people  to  adopt  a  new  form  of  constitution, 


638  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  leading  points  of  which  were :  First,  A  President  chosen 
for  ten  years ;  second,  Ministers  responsible  to  the  President ; 
third,  A  council  of  state  to  prepare  laws  and  discuss  them  be- 
fore the  legislative  body ;  fourth,  A  legislative  body  elected  by 
universal  suffrage  to  discuss  and  pass  laws;  fifth,  A  Senate  to 
guard  the  Constitution  and  public  liberty.  To  the  army  a 
flattering  proclamation  was  issued,  demanding  passive  obedi- 
ence to  orders  and  assuming  full  responsibility  to  the  people 
for  all  his  measures.  The  third  proclamation  was  by^  the 
prefect  of  police  warning  all  that  attempts  at  revolt  would  be 
severely  repressed.  The  Assembly  was  forcibly  prevented 
from  again  convening.  •  Though  the  Constitution  gave  the 
supreme  court  power  to  call  a  grand  jury  to  try  the  president 
in  case  of  high  treason,  no  action  was  taken  because  of  ''the 
material  obstacles  to  the  execution  of  any  decree  that  might 
be  issued."  Attempts  at  resistance  to  Napoleon's  usurpation 
of  power  were  made  at  Paris  and  throughout  the  provinces, 
but  they  were  mercilessly  crushed.  In  Paris  some  barricades 
were  erected,  but  the  people  were  not  able  to  hold  them  against 
the  army,  and  those  offering  resistance  were  mercilessly  slaugh- 
tered. As  the  resistance  was  overcome  great  numbers  of 
arrests  were  made,  and  while  the  guillotine  was  not  again  set 
actively  at  work,  there  were  many  arbitrary  orders  of  trans- 
portation and  imprisonment  without  any  observance  of  legal 
forms.  Hostility  to  the  usurper  was  an  offense  punished  by 
his  emissaries  at  discretion.  The  election  held  on  December  20 
and  21  resulted  in  an  overwhelming  endorsement  of  the  usur- 
pation. On  Jan.  14,  1852,  Napoleon  promulgated  a  new  Con- 
stitution. It  began  with  a  "recognition,  confirmation  and 
guarantee  of  the  principles  proclaimed  in  1789,"  but  "The  gov- 
ernment of  the  French  Republic  is  intrusted  to  Prince  Louis 
Napoleon  Bonaparte  for  the  term  of  ten  years,"  who  was  made 
responsible  to  the  French  people.  The  president  was  given 
command  of  the  army  and  navy,  power  to  declare  war,  make 
treaties  and  alliances,  fill  offices  and  make  rules  and  regulations 
for  the  execution  of  the  laws.  Justice  should  be  executed  in  his 
name  and  he  alone  could  issue,  sanction  and  promulgate  laws. 
All  public  functionaries  must  swear  allegiance  to  him.     "The 


FRANCE  639 

wheel  within  the  wheel  of  the  new  organization  will  be  a  state 
council  of  from  forty  to  fifty  members,  chosen  and  revocable 
by  the  president  of  the  republic,  discussing  the  laws  in  private 
session,  then  presenting  them  for  the  approval  of  the  Legis- 
lature." The  Legislature  was  to  consist  of  262  members, 
chosen  for  five  years  by  universal  suffrage,  to  vote  on  laws 
and  taxes.  The  Senate  was  composed  of  eighty  members, 
liable  to  be  increased  to  one  hundred  and  fifty,  chosen  by 
the  president,  except  that  cardinals,  marshals  and  admirals 
were  senators  virtute  officii.  The  president  might  give  sena- 
tors an  income  of  30,000  francs.  The  senate  was  to  oppose 
the  promulgation  of  laws  contrary  to  the  Constitution,  to  mor- 
ality, religion,  etc.  All  mayors  were  chosen  by  the  executive. 
There  was  no  guaranty  of  liberty  of  the  press  or  security  of 
the  person  against  arbitrary  arrest.  The  new  constitution 
created  a  despotism  based  on  a  written  constitution  and  uni- 
versal suffrage.  The  new  government  closed  many  of  the 
schools  and  changed  the  faculty  of  the  university  and  the 
course  of  study.  On  the  other  hand  its  energies  were  devoted 
to  the  development  of  industrial  enterprises  and  commerce. 
Railroad  companies  were  organized  and  roads  constructed. 
Banking  institutions  were  organized  and  the  Bank  of  France 
grew  in  importance.  November  20  and  21  the  people  restored 
the  Empire  with  Napoleon  as  hereditary  ruler  under  the  title 
of  Napoleon  III  by  a  nearly  unanimous  vote.  March  27,  1854, 
the  war  with  Russia  broke  out  with  the  somewhat  novel  com- 
bination of  Turkey,  France  and  England  as  allies  against  Rus- 
sia, while  Austria  armed  but  remained  neutral.  This  strange 
combination  prosecuted  a  war  which  cost  France  the  lives  of 
95,000  men,  besides  those  who  lingered  on,  suffering  from  the 
effects  of  wounds,  exposure  and  disease,  and  from  which 
France  gained  nothing. 

On  May  3,  1859,  the  emperor  announced  to  the  Chambers 
that  Austrian  troops  had  invaded  Piedmont  and  proclaimed 
that  Austria  must  rule  to  the  Alps  or  Italy  be  free  to  the 
Adriatic.  A  brief  campaign  resulted  in  overwhelming  defeats 
for  the  Austrians,  followed  by  a  peace  quickly  concluded 
by  Napoleon,  by  which  Piedmont  gained  Lombardy  at  the 


640  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

expense  of  the  cession  of  Nice  and  Savoy  to  France.  This 
war,  although  bloody  while  it  lasted,  ended  July  8.  It  gave 
Napoleon  prestige,  restored  to  France  a  part  of  its  natural 
territory  and  imparted  an  impulse  to  the  idea  of  Italian  na- 
tionality and  unity,  which  soon  resulted  in  the  union  of  the 
whole  peninsula  under  the  Sardinian  king  and  the  expulsion 
of  the  Austrians.  Operations  in  China  and  Algeria  were  also 
productive  of  the  extension  of  French  power,  but  the  attempt 
to  place  Maximilian  on  the  throne  of  Mexico  during  the 
civil  war  in  the  United  States,  cost  that  unhappy  prince  his 
life,  along  with  that  of  many  thousand  others,  and  brought 
disgrace  on  the  empire.  Neither  of  these  wars  was  long  or 
very  exhausting  to  France.  On  the  other  hand  the  peaceful 
activities  of  the  country  were  stimulated  under  the  reign  of 
Napoleon  as  they  had  never  been  before.  A  liberal  trade 
policy,  by  which  many  ancient  restrictions  were  abolished  and 
trade  with  foreign  countries  encouraged,  together  with  the 
development  of  shipping  interests  and  improved  means  of 
internal  communication  by  railroads,  canals,  and  wagon  roads, 
resulted  in  rapid  development  of  manufactures  and  domestic 
and  iforeign  commerce.  Though  the  rule  of  Napoleon  III  was 
a  despotism,  it  was  a  despotism  based  on  the  popular  will  and 
with  energies  directed  toward  the  material  development  of 
France.  In  adapting  such  a  government  to  the  tastes  and 
prejudices  of  the  French  people  Napoleon  III  manifested  great 
tact,  and  on  the  whole  his  system  was  not  altogether  unsuited 
to  the  conditions  then  existing.  But  the  inevitable  attendants 
of  despotisms  are  corruption  and  injustice.  Arbitrary  power 
is  never  effectually  held  within  the  even  course  of  justice 
merely  by  a  sense  of  right.  The  unrestrained  power  to  act 
on  impulse,  without  external  restraint,  inevitably  results  in 
departure  from  right  conduct.  There  is  also  a  strong  tendency 
for  the  official  instruments,  through  whom  the  despot  exe- 
cutes his  will,  to  adopt  systems  and  methods  of  administration 
which  are  essentially  and  inherently  bad  in  their  effects  on 
the  general  public,  but  agreeable  and  profitable  to  the  inter- 
ested supporter  of  the  throne.  Whether  a  realization  of  the 
growth  of  such  conditions  influenced  him,  or  other  motives, 


FRANCE  641 

in  i860  he  granted  to  the  Legislature  pubHcity  of  debate,  free- 
dom of  speech  and  some  measure  of  control  over  the  expendi- 
tures of  public  moneys.  Legislation  for  the  betterment  of  the 
conditions  of  laboring  men  was  also  attempted.  While  look- 
ing to  the  people  through  universal  suffrage  for  his  support 
and  authority,  he  really  took  some  interest  in  the  welfare  of 
the  great  multitude.  In  1869  he  proposed  still  more  sweeping 
reforms,  by  creating  a  ministry  responsible  to  the  Senate  as 
well  as  to  the  Emperor,  and  otherwise  materially  extending 
the  power  of  the  Legislative  Chambers.  In  accordance  with 
his  prior  policy  his  new  constitutional  measures  were  submit- 
ted to  the  people  and  approved  by  an  immense  majority  on 
May  8,  1870,  7,300,000  voting  for  to  1,500,000  against.  The 
particulars  of  the  changes  thus  effected  in  the  framework  of 
the  government  were  rendered  unimportant  by  ifollowing 
events.  The  greatly  increased  power  of  the  Prussian  mon- 
archy, elevated  to  the  leadership  of  Germany  after  military 
successes  over  Austria,  caused  intense  popular  jealousy  in 
France.  Napoleon,  relying  on  the  reports  of  his  ministers  as 
to  the  condition  of  the  army  and  its  equipments,  rashly  and 
rudely  provoked  war  with  Germany,  without  any  real  ground 
for  a  quarrel.  War  was  formally  declared  on  July  19,  1870, 
but  here  the  weakness  of  his  despotism  became  evident  to 
Napoleon  and  to  the  world.  The  effects  of  corruption  and  in- 
efficiency were  apparent  in  all  departments  of  the  military 
service.  Instead  of  a  state  of  readiness  for  immediate  action, 
it  was  found  that  the  army  was  in  no  condition  to  move. 
Arms,  wagons,  ammunition  and  equipments  of  all  kinds  were 
so  stored  and  distributed  as  to  be  unavailable  ifor  immediate 
service.  On  the  other  side  Germany  was  ready,  and  by  Sep- 
tember 2,  a  month  after  the  opening  of  the  campaign,  Napo- 
leon and  his  army  were  prisoners  of  war  as  the  result  of  the 
fatal  battle  of  Sedan.  On  Sunday  September  4  the  Legisla- 
ture met,  declared  the  Imperial  Government  at  an  end  and 
proclaimed  the  Republic.  A  provisional  government  with 
General  Trochu  as  President  was  formed.  Though  this  gov- 
ernment struggled  desperately  to  rally  the  forces  of  France 
and  resist  the  invading  host,  no  sufficient  amount  of  energy  or 


642  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

effort  could  be  exerted  to  counterbalance  the  superior  prepa- 
rations of  the  Germans.  On  January  28,  after  enduring  the 
horrors  of  a  siege  with  its  vast  population,  Paris  surrendered 
to  the  invaders.  On  February  26  peace  preliminaries  were 
settled,  France  ceding  Alsace,  except  Belfort,  and  part  of 
Lorraine,  and  agreeing  to  pay  1,000,000,000  francs  as  war 
indemnity.  During  the  first  week  of  February  elections  were 
held  and  a  new  Assembly  of  653  members  was  chosen,  which 
convened  at  Bordeau  on  the  twelfth  and  on  the  seventeenth 
chose  M.  Thiers  President,  who  named  an  able  ministry. 
When  Paris  surrendered  the  National  Guard  were  allowed  to 
retain  their  arms.  After  the  terms  of  peace  had  been  ac- 
cepted the  old  turbulence  of  the  Parisian  mob  again  mani- 
fested itself,  it  rose  in  revolt  against  the  government,  and  the 
National  Guard  joined  forces  with  it.  A  bloody  conflict  fol- 
lowed, but  this  time  France  dictated  to  Paris,  not  Paris  to 
France.  For  once  the  government  supported  by  the  provinces 
was  able  to  force  the  turbulent  city  to  submit,  though  not 
without  much  bloodshed  and  many  barbarities,  all  too  similar 
to  those  of  the  reign  of  terror. 

The  government  drifted  without  the  adoption  of  a  definite 
constitution.  The  Assembly,  which  had  moved  from  Bor- 
deaux to  Versailles  was  monarchically  inclined,  but  legitimists, 
Orleanists  and  imperialists  were  not  able  to  combine.  In  May 
1873,  the  Thiers  government  sustained  a  defeat  in  the  As- 
sembly, as  a  result  of  which  Thiers  resigned.  Marshal 
McMahon  was  elected  to  succeed  him,  and  at  the  session  which 
began  in  November  1873  his  powers  were  prolonged  for  seven 
years.  The  matter  of  settling  the  constitution  dragged  on 
till  Feb.  25,  1875,  when  the  proposition  was  finally  carried  by 
a  majority  of  only  one  vote,  that  "the  President  of  the  Re- 
public is  elected  by  an  absolute  majority  of  votes,  by  the 
Senate  and  Chamber  of  Deputies  united  in  National  Assembly. 
He  is  appointed  for  seven  years,  and  is  eligible  for  reelection," 
and  also  that  the  power  of  dissolving  the  Chamber  should  be 
granted  to  the  President  of  the  Republic.  A  Senate  was 
created  consisting  of  three  hundred  members,  not  under  forty 
years  of  age,  one  third  to  be  chosen  every  three  years,  with 


FRANCE  643 

powers  equal  to  those  of  the  Chamber  of  Deputies  except  in 
matters  of  finance.  The  Senate  was  made  a  court  for  the 
trial  of  the  President  and  ministers  in  case  of  impeachment. 
The  Chamber  was  elected  by  universal  suffrage,  and  had 
power  to  propose  amendments  to  the  constitution,  which  must 
be  adopted  by  both  houses.  During  McMahon's  term  no  re- 
vision was  allowed  unless  proposed  by  him.  The  President 
was  the  executive  with  power  to  appoint  civil  and  military 
executive  officers,  nominate  the  Council  of  State,  dissolve  the 
Chamber  of  Deputies  at  any  time  with  the  consent  of  the 
Senate,  and  to  be  responsible  only  for  treason.  The  ministers 
were  made  responsible  individually  and  collectively  to  the 
Chambers.  Thus  the  existing  republic  was  established.  The 
assembly  ended  its  existence  on  March  7,  1876.  The  elections 
which  ensued  resulted  in  a  large  Republican  majority.  On 
June  25,  1877,  owing  to  a  controversy  between  the  President 
and  Chamber  of  Deputies  over  the  Ministry,  the  Chamber  was 
dissolved  and  an  election  ordered.  The  result  was  an  in- 
creased Republican  majority.  A  ministry  still  out  of  harmony 
with  the  majority  having  been  named  by  the  President,  com- 
posed of  persons  not  members  of  the  Chamber,  a  resolution 
passed  that  body  to  "hold  no  relations  with  this  Ministry," 
and  the  Chamber  refused  to  vote  the  Budget.  The  President 
found  it  necessary  to  yield.  In  January  1879  he  came  in  con- 
flict with  the  ministry  over  army  appointments,  which  he  al- 
lowed to  continue  longer  than  the  legal  limit,  and  the  President 
resigned.  Jules  Grevy  was  thereupon  elected  by  the  two 
Chambers  assembled  in  congress  as  his  successor.  Since  the 
establishment  of  the  Republic  the  energies  of  government  have 
been  directed  more  than  ever  before  toward  the  development 
of  an  orderly  system,  based  on  the  will  of  the  people.  Under 
the  law  of  1885  the  representation  is  on  the  basis  of  one  rep- 
resentative for  each  department  and  an  additional  one  for 
every  70,000  or  fraction  thereof  of  population,  and  the  depu- 
ties are  chosen  by  universal  suffrage.  The  Senate  consists  of 
three  hundred  members,  one-fourth  of  whom  were  at  first 
chosen  for  life  by  the  Assembly,  and  each  vacancy  among 
these  to  be  filled  by  the  Senate.     The  remainder  are  chosen 


644  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

for  nine  years  by  special  bodies  in  each  department  and  in  the 
colonies,  a  third  of  the  number  being  renewed  every  three 
years.  The  President  receives  a  salary  of  600,000  francs  per 
year  and  an  allov^ance  for  expenses  of  162,400  francs.  Sena- 
tors and  deputies  receive  9,000  francs  per  year.  The  allow- 
ance is  not  large  compared  with  those  to  past  kings  and 
emperors,  who  were  granted  12,000,000  to  Louis  Philippe, 
32,000,000  to  Louis  XVIII  and  his  family,  and  25,000,000. 
besides  many  special  revenues  to  Napoleon  III.  At  the  head 
of  the  executive  department  is  the  president,  with  a  cabinet 
of  nine  ministers,  namely  of  justice  and  keeper  of  the  seals,. 
■foreign  affairs,  interior,  finance,  war,  marine  and  colonies, — 
instruction,  ecclesiastical  affairs  and  fine  arts, — agriculture 
and  commerce,  and  public  works.  These  ministers  are  ap- 
pointed by  the  president,  but  responsible  for  their  acts  to  the 
chambers.  Aside  from  the  responsible  executive  and  legis- 
lative departments  of  the  government  there  is  a  council  of 
state,  whose  business  it  is  to  give  advice  on  projects  of  law 
proposed  by  the  executive  or  the  chambers  and  on  adminis- 
trative regulations  and  by-laws.  They  also  exercise  jurisdic- 
tion over  administrative  officers.  All  disputes  arising  in 
matters  of  administration  and  all  complaints  against  admin- 
istrative officers  are  cognizable  by  the  Council,  whose  decision 
is  final.  The  composition  of  the  Council  is  a  president  and 
vice-president,  twenty-two  councillors  in  ordinary  service  and 
fifteen  extraordinary,  twenty-four  masters  cf  requests,  twenty 
auditors  of  the  first  class  and  ten  of  the  second,  a  general 
secretary  and  a  secretary  du  contentieux.  The  auditors  are 
appointed  after  competitive  examination,  the  ordinary  coun- 
cillors by  the  chamber  of  deputies  and  the  others  by  the  presi- 
dent. For  administrative  purposes  France  is  now  divided 
into  eighty-seven  departments,  subdivided  into  three  hundred 
sixty-two  arrondissements,  2,865  cantons  and  about  30,000 
communes.  The  chief  executive  officer  of  each  department  is 
a  prefect  appointed  by  the  president,  and  of  each  arrondisse- 
ment  a  sub-prefect.  A  prefect  is  charged  with  the  mainte- 
nance of  order,  and  for  that  purpose  is  at  the  head  of  the 
police  and  may  summon  the  military  force;  he  superintends. 


FRANCE  645 

the  collection  of  taxes,  issues  local  decrees,  appoints  and  dis- 
misses his  agents  and  is  charged  with  the  duty  of  executing 
the  orders  of  the  government.  There  is  also  in  each  depart- 
ment a  general  council  elected  by  universal  suffrage,  and  a 
council  of  prefecture  nominated  by  the  executive.  The  busi- 
ness of  the  councils  is  to  assess  taxes,  manage  local  property, 
roads,  railways,  canals,  charitable  institutions  and  other  mat- 
ters of  local  interest,  decide  legal  questions  and  advise  the 
prefect  when  he  so  requests.  They  are  also  designed  to  place 
a  check  on  any  attempt  at  usurpation  of  power,  and  in  case  of 
a  coup  d'etat  they  must  immediately  assemble  and  choose  mem- 
bers of  a  new  assembly.  The  duties  of  the  sub-prefect  corre- 
spond in  the  arrondissement  with  those  of  the  prefect  in  the 
department,  and  he  is  assisted  by  a  council  of  the  arrondisse- 
ment, to  which  each  canton  elects  a  member. 

The  commune  is  the  administrative  unit,  with  a  mayor  at 
its  head  assisted  by  deputy  mayors,  varying  in  number  ac- 
cording to  population.  In  the  large  towns  the  mayors  are 
named  by  the  government  from  the  members  oi  the  municipal 
council  elected  by  the  people.  This  council  has  powers  simi- 
lar to  those  of  the  departments.  The  mayors  are  registrars 
of  births,  marriages  and  deaths.  In  every  canton  there  is  a 
commissary  of  police,  who  acts  under  direction  of  the  mayor. 
In  towns  of  less  than  6,000  inhabitants  he  is  chosen  by  the 
people,  and  in  larger  ones  appointed  by  the  president. 

At  the  foot  of  the  judicial  system  is  a  judge  de  paix,  judge 
of  the  peace,  in  each  canton  with  jurisdiction  in  civil  causes 
involving  200  francs  or  less  and  in  criminal  causes  where  the 
fine  cannot  exceed  fifteen  francs.  An  appeal  lies  from  judg- 
ments for  over  100  francs.  In  every  arrondissement  is  a 
primary  court  of  general  original  jurisdiction  in  civil  cases. 
An  appeal  lies  to  the  court  of  appeals  from  a  judgment  for 
more  than  1,500  francs.  There  are  twenty-six  courts  of 
appeals,  which  are  located  at  certain  chief  towns.  There  are 
also  tribunals  of  commerce,  whose  judges  are  chosen  from 
the  merchants  by  themselves,  in  the  principal  cities.  Their 
decisions  in  cases  involving  over  1,500  francs  are  also  subject 
to  appeal.     For  offenses  next  above  the  jurisdiction  of  judges 


646  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  peace  there  is  a  special  section  of  the  tribunals  of  first 
instance,  called  the  tribunal  correctionnel,  to  which  appeals 
lie  from  the  judge  of  the  peace,  and  its  judgments  are  subject 
to  revision  by  the  court  of  appeals.  For  the  trial  of  felonies 
there  is  the  cour  d' assises,  consisting  of  three  judges  and 
twelve  jurors.  These  courts  sit  in  each  chief  town  in  the 
department  once  in  three  months.  In  criminal  cases  a  private 
preliminary  inquiry  is  conducted  by  a  judge  d' instruction,  who 
either  ends  the  proceeding  by  an  order  of  non-lieu  or  passes 
the  case  over  to  the  court,  to  be  thereafter  conducted  by  the 
public  prosecutor.  At  the  head  of  the  entire  judicial  system 
stands  the  Court  of  Cassation,  composed  of  three  divisions 
chamhre  des  requetes,  chambre  civile  and  chambre  criminelle. 
It  reviews  the  proceedings  of  the  other  courts,  which  are  ap- 
pealed to  it,  and  corrects  errors  of  law,  but  does  not  review  the 
findings  of  fact.  When  a  cause  is  reversed,  it  sends  it  for  a 
new  trial  to  such  court  as  it  thinks  fit. 

There  are  also  military  tribunals,  maritime  tribunals  and 
councils  of  discipline  for  lawyers  and  other  professions.  An 
important  institution  is  the  cour  des  comptes,  consisting  of 
three  chambers  with  a  president  in  chief  and  a  president  of 
each  chamber,  a  general  procurator,  a  chief  greffier,  102  coun- 
cillors, twenty  auditors,  and  eighty-one  clerks,  which  super- 
vises the  accounts  of  all  government  ofHcials.  One  of  the 
chief  functions  of  the  juge  de  paix  is  to  bring  parties  to  an 
agreement  before  suit,  and  no  suit  can  be  brought  in  the 
courts  of  first  instance  till  he  has  made  an  unsuccessful  effort 
to  bring  the  parties  to  an  agreement. 

The  history  of  France  suggests  the  question  why  despot- 
isms have  lasted  so  long  and  republican  forms  of  government 
proven  so  short-lived.  Nowhere  else  have  higher  ideals  of 
the  relations  of  man  found  expression  than  in  France  during 
the  revolution  and  prior  to  the  advent  of  Napoleon,  yet  the 
republic  vanished  and  the  empire  followed,  supported  by  the 
people  before  whom  such  high  ideals  had  but  just  been  pro- 
claimed. Little  of  good  existed  in  the  system  of  Louis  XIV, 
yet  his  despotism  endured  to  be  continued  under  his  succes- 
sors for  the  greater  part  of  a  century.     His  was  a  system  of 


FRANCE  647 

extorting  from  the  great  multitude  the  major  part  of  their 
earnings  to  waste  it  on  idle  courtiers  or  in  wars  for  the  glory 
of  the  king.  Not  only  were  the  multitude  deprived  of  the 
products  of  their  labors  through  theories  of  land  tenure  and 
taxation,  but  they  were  deprived  of  all  access  to  the  great 
store  of  knowledge  which  is  at  all  times  the  treasure  of 
greatest  value.  It  is  difficult  to  point  out  any  benefit  which 
the  Bourbon  dynasty  conferred  on  the  common  people,  save 
a  little;  restraint  from  harming  one  another.  It  is  difficult  to 
point  out  moral  qualities  in  the  king  or  his  courtiers  which 
commended  them  to  the  support  of  the  people.  What  then 
influenced  the  multitude  to  submit  to  their  authority?  They 
and  their  ancestors  had  been  educated  through  many  centuries 
to  do  so.  The  doctrine  of  the  divine  right  of  kings  to  rule  and 
that  their  acts  as  rulers,  however  lacking  in  moral  quality, 
were  right  and  not  open  to  criticism,  had  been  taught,  not 
only  by  state  officials  of  all  classes,  but  by  the  clergy,  who 
came  in  close  contact  with  the  multitude.  A  great  system  had 
been  built,  to  which  all  classes  had  become  accustomed.  In 
matters  of  religion  the  multitude  looked  to  the  clergy  for 
guidance.  In  matters  of  state  the  king  was  all  powerful. 
The  great  toiling  multitude  of  peasants  were  too  ignorant 
and  too  poor  to  either  appreciate  the  injustice  they  endured 
or  make  any  concerted  effort  to  relieve  themselves  of  it.  The 
mechanics  and  laborers  in  the  cities  were  a  little  better  in- 
formed, but  still  without  organization  or  well  defined  common 
purposes.  The  so-called  higher  classes,  those  who  did  not 
work  but  profited  :from  the  prevailing  conditions,  had  most 
knowledge  of  the  system  under  which  they  lived  and  least  in- 
clination to  change  it.  The  great  landholder  appreciated  the 
advantages  he  derived  from  the  system  of  land  tenure,  which 
made  his  tenants  his  servants.  The  courtier  rejoiced  in  the 
system  which  squeezed  revenue  from  the  impoverished  multi- 
tude, for  the  greater  the  sum  collected  the  more  there  was 
for  the  king  to  lavish  on  unworthy  favorites.  The  courtiers 
looked  to  the  king  for  their  incomes  and  knew  that  favors 
were  only  to  be  gained  by  subserviency  to  his  will  and  pleas- 
ing his  vanity.    Thus  at  the  court  of  France  the  art  of  pleas- 


648  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ing  came  to  be  studied  as  of  first  importance  with  little  less 
than  oriental  servility  toward  the  monarch.  The  clergy  as  a 
class  found  it  to  their  interest  to  uphold  the  prevailing  sys- 
tem, because  it  protected  them  in  their  vast  privileges. 
Whence  then  came  the  impulse  of  the  revolution?  From  the 
scholars  and  thinkers,  from  those  who  sought  truth  rather 
than  personal  advancement,  from  men  in  whatever  station  in 
life  who  had  consciences  keen  enough  to  be  moved  by  the 
abuses  of  the  times  and  sufficient  discernment  to  comprehend 
them. 

The  great  schools  were  centers  of  advanced  investigation. 
The  study  of  the  learning  of  the  Greeks  and  Romans  neces- 
sarily carried  with  it  knowledge  of  their  political  ideas,  and 
when  a  great  mind  like  that  of  Montesquieu  proceeded  to 
analyze  the  prevailing  system,  he  could  do  no  less  than  con- 
demn the  moral  basis  of  it.  The  art  of  printing  had  come  to 
aid  in  the  preservation  of  knowledge  and  the  dissemination 
of  ideas,  and  while  rigid  censorship  of  all  publications  was 
maintained,  works  like  Montesquieu's  Spirit  of  Laws,  believed 
not  inimical  to  monarchical  institutions,  produced  profound 
effects  on  the  minds  of  students.  The  church  too  ifurnished 
its  quota  of  reformers.  Not  all  the  clergy  were  content  with 
mere  ritual  and  revenue.  Many  sought  the  real  meaning  of 
the  religion  they  professed  to  teach,  and  perceived  how  ut- 
terly wanting  in  Christian  fraternity  was  the  despotism  under 
which  they  lived.  The  spirit  of  brotherly  love  and  self-deny- 
ing helpfulness  to  others,  which  pervades  the  teachings  of 
Christ,  was  altogether  wanting  in  the  court  and  among  most 
of  the  higher  clergy,  but  there  were  many  in  the  more  humble 
stations,  who  took  the  true  spirit  of  Christ's  teaching  to  heart 
and  sought  practical  application  of  them. 

When  Louis  XVI  convened  the  States-General  for  the  first 
time  in  175  years  to  aid  him  in  his  financial  difficulties,  he 
brought  together  moral  forces  which  had  been  gaining  strength 
through  those  years,  with  which  his  government  was  un- 
acquainted. The  abuses  of  the  kingly  government  were  per- 
ceived and  condemned,  and  the  true  principles  which  should 
govern  the  state  were  proclaimed.     No  representative  bodies 


FRANCE  649 

have  ever  formulated  better  statements  of  the  true  purposes 
of  government  than  those  which  carried  on  their  deUberations 
during  the  stormy  period  of  the  revolution.  The  formula  of 
''Liberty,  equality,  fraternity,"  caught  the  hearts  of  the  multi- 
tude and  was  approved  by  the  consciences  of  many  who  had 
profited  from  the  old  regime.  How  then  came  it  that,  instead 
of  an  era  of  real  good  will  and  fraternity  among  men,  a 
reign  of  blood  and  terror  followed?  Surely  the  poison  did 
not  inhere  in  the  principles  advanced,  but  rather  in  the  lack 
of  general  understanding  of  them  and  inability  to  suddenly 
substitute  a  just  system  for  one  of  arbitrary  power.  It  is  one 
thing  to  lay  down  the  fundamental  principles  on  which  all 
governments  and  laws  should  be  founded,  and  quite  another 
thing  to  perfect  a  system  of  organized  society,  which  shall  be 
able  to  enforce  them  in  spite  of  the  opposition  of  the  selfish 
and  cunning.  Not  only  is  it  necessary  to  formulate  just 
principles  as  the  basis  of  the  social  structure,  but  also  to  place 
the  enforcement  of  them  in  hands  that  both  can  and  will  be 
just  and  do  right.  The  great  multitude  were  accustomed  to 
stand  in  awe  of  the  king  and  of  the  great  men  of  his  court; 
they  were  unaccustomed  to  participation  in  the  selection  of 
the  men  who  should  direct  public  affairs;  they  were  ignorant 
of  state  affairs  and  of  the  practical  methods  by  which  one  class 
of  officials  may  be  made  to  check  the  abuses  of  another.  They 
were  accustomed  to  the  abuses  of  unrestrained  power,  and 
the  first  impulse  naturally  was  to  overthrow  the  king  and  his 
courtiers  who  had  oppressed  them.  If  the  necessity  for  doing 
so  be  conceded,  it  was  but  the  lesser  task.  The  far  more  diffi- 
cult one  of  constructing  a  new  and  better  system  for  the  man- 
agement of  public  affairs  remained.  This  new  system  must 
be  fitted  to  the  then  existing  society  with  its  inherited  ideas 
and  prejudices.  The  leaders  of  the  revolution  made  the  grand 
mistake  of  assuming  that  a  system  founded  on  lofty  ideals 
could  be  made  readily  acceptable  to  a  nation  whose  leading 
spirits  were  bitterly  hostile  to  it,  and  in  which  a  vast  majority 
were  too  ignorant  to  form  definite  opinions  or  to  give  ex- 
pression to  their  wishes.  The  government  did  not  fit  the 
people. 


650  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

In  a  despotism  the  habit  of  obedience  to  the  estabhshed 
authority  furnishes  the  bond  which  maintains  social  order. 
In  a  repubHc  there  must  be  a  feeHng  of  general  confidence  in 
the  moral  purposes  of  those  placed  in  power,  and  a  prevailing 
disposition  to  tolerate  sentiments  honestly  entertained,  no 
matter  how  erroneous  they  may  appear.  The  leaders  of  the 
opposing  political  factions  soon  made  the  fatal  mistake  of 
imputing  bad  motives  to  each  other,  and  then  of  indulging  in 
threats.  The  reign  of  terror  was  preceded  by  mutual  distrust 
and  wild  threatenings.  The  talk  of  intemperate  leaders  pre- 
pared the  ground  for  the  guillotine.  If  statesmen  could  be 
made  to  know  that  in  morals  the  crime  of  advocating  war 
and  wholesale  slaughter  is  far  greater  than  that  of  partici- 
pation in  it  by  those  who  become  soldiers  from  a  sense  of 
duty,  there  might  be  hope  for  the  peace  of  the  world.  In 
France  there  was  distrust  by  one  faction  of  another,  then 
threatenings  then  bloody  butcheries.  The  principle  was  simi- 
lar to  that  on  which  the  more  excusable  wars  come  about, 
mutual  distrust,  fear,  hatred  and  then  open  violence.  The 
wars  instituted  by  rulers,  merely  to  gratify  their  ambitions, 
have  been  far  more  numerous  and  their  authors  far  more 
criminal.  The  most  pernicious  man  in  public  affairs  is  he  who 
advocates  violence  either  between  factions  at  home  or  with  a 
foreign  power.  Though  in  a  defensive  war  if  or  the  preserva- 
tion of  the  homes  of  the  people  against  either  a  foreign  in- 
vader or  a  domestic  oppressor  the  noblest  qualities  of  courage 
and  self-sacrifice  for  the  good  of  others  have  often  been 
displayed,  the  ordinary  business  of  the  soldier  is  to  fight, 
kill  and  make  desolate.  War  is  always  brutalizing  and 
demoralizing. 

There  were  leaders  of  the  revolution  who  did*  not  teach 
peace,  concord  and  mutual  confidence,  without  which  there 
cannot  be  liberty,  equality  and  fraternity,  but  sowed  seeds  of 
dissension  and  advocated  bloodshed  as  a  remedy  for  social 
ills.  Here  was  the  mistake  which  rendered  a  republic  impos- 
sible in  their  time,  ifor  the  bloody  military  spirit  naturally  and 
usually  leads  to  a  military  despotism.  Napoleon  was  the  in- 
carnation of  the  bloody  ideals  of  those  who  condemned  their 


FRANCE  651 

countrymen  to  the  guillotine.  His  hypocritical  professions  of 
devotion  to  popular  rights  and  hatred  of  kings  and  tyrants 
caught  the  fancy  of  the  multitude  and  blinded  them  to  his  real 
qualities  and  purposes.  The  ideals  of  the  great  leaders  of  the 
assembly  and  convention,  though  generations  in  advance  of 
the  people,  were  not  wholly  lost  however.  Some  immediate 
advantages  resulted.  The  first  and  most  important  perhaps  of 
the  material  gains  came  from  the  breaking  up  of  the  great 
estates  of  the  nobility  and  a  vast  increase  in  the  number  of 
independent  peasant  proprietors.  The  extension  of  the  edu- 
cational system  so  as  to  greatly  increase  the  number  of  chil- 
dren taught  was  perhaps  of  equal  or  even  greater  permanent 
value,  and  the  propagation  of  fundamental  principles  of  jus- 
tice and  human  rights,  though  for  the  time  productive  of 
many  ills,  exercised  a  profound  influence  for  future  good  not 
only  in  France  but  throughout  Europe.  Eighty  years  later 
these  principles  had  become  so  generally  understood  and  rec- 
ognized that  a  republic  was  established  and  has  since  been 
successfully  maintained. 

France  is  to  be  congratulated,  not  only  on  the  great  progress 
made  within  the  last  century,  but  also  on  the  possession  of 
the  high  ideals  of  the  revolution,  which  still  stimulate  to 
continued  improvement. 

Authorities 

Martin:     History  of  France. 

Guizot:     History  of  France. 

Taine:     French  Revolution. 

Taine:     The  Ancient  Regime. 

Thiers :    Consulate  and  Empire  of  Napoleon. 

Brissaud :    History  of  Private  French  Law. 


CHAPTER  XXIV 

The  British  Empire 

The  earliest  inhabitants  of  the  British  Isles  of  whom  we 
have  any  accounts  are  styled  Britons  and  are  not  classed  as 
Aryans.  The  first  settlers  of  the  latter  stock  are  said  to  have 
been  Celts.  Caesar  says  that  in  his  time  the  inhabitants  of 
the  interior  were  accounted  descendants  of  the  natives  of  the 
island,  while  the  maritime  portions  of  the  island  were  peopled 
by  invaders  from  Belgium,  who  had  settled  down  and  com- 
menced to  cultivate  the  soil.  He  says  the  country  was  very 
populous  and  the  buildings  similar  to  those  of  Gaul,  that  they 
had  many  cattle,  that  they  used  brass  or  iron  bars  for  money, 
that  the  inhabitants  of  Kent  (Cantium),  did  not  differ  much 
in  customs  from  the  Gauls,  that  many  of  the  inhabitants  of 
the  interior  did  not  sow  grain  but  lived  on  milk  and  meat  and 
wore  skins  for  clothing,  that  they  painted  themselves  dark 
blue,  wore  their  hair  long,  and  shaved  all  but  the  upper  lip, 
that  ten  or  twelve  brothers  or  even  father  and  sons  had  wives 
in  common.  They  used  not  only  horses  but  also  a  kind  of 
chariot  in  battle  and  were  brave  and  strong.  It  is  impossible 
to  tell  what  race  of  men  first  inhabited  the  island.  In  the 
earliest  accounts  we  read  of  Britons,  Picts  and  Scots  as  ante- 
dating the  advent  of  the  Romans.  Sometimes  all  are  classed 
as  Celts,  and  again  the  Britons  are  spoken  of  as  allied  to  the 
Basques  of  the  Pyrenees.  Ireland  was  peopled  by  Celts  and, 
while  authentic  history  of  it  in  the  time  of  Caesar  is  wanting, 
popular  traditions,  handed  down  apparently  with  more  than 
ordinary  trustworthiness,  indicate  that  the  people  of  Ireland 
were  at  that  time  better  organized  and  more  prosperous  than 
those  on  the  larger  island.  In  religion  the  people  of  both 
islands  were  Druids,  with  rites  corresponding  with  those  of 
the  Celts  of  France.  The  organization  of  society  was  essen- 
tially tribal,  with  the  authority  of  chiefs  enlarged  or  con- 
ess 


THE  BRITISH  EMPIRE  653 

tracted  according  to  individual  capacity  and  the  exigencies  of 
their  wars.  The  Druid  priests  exercised  much  influence  and 
authority,  of  which,  however,  we  have  no  very  accurate 
account. 

The  subjugation  of  England  and  of  that  part  of  Scotland 
south  of  the  Clyde  and  Forth  was  completed  by  Agricola  about 
A.D.  84.  He  even  extended  his  operations  into  Sterling  and 
Perth  and  constructed  a  line  of  forts  from  the  Clyde  to  the 
Forth.  In  his  conquests  he  employed  five  legions,  which  with 
auxiliaries  and  cavalry  are  estimated  to  have  made  an  army 
of  50,000,  indicating  much  resistance  to  the  Roman  advance. 
The  period  of  Roman  occupation  was  barren  of  any  events 
of  interest  in  the  Hne  of  our  investigation.  Christianity  was 
introduced  into  the  island,  and  the  people  seem  to  have  ac- 
cepted the  religion  of  their  conquerors  much  as  they  did  their 
system  of  government.  No  peculiarities  of  administration 
and  no  modifications  of  Roman  law  to  conform  to  the  peculiar 
circumstances  or  genius  of  the  natives  are  micntioned,  nor  was 
literature  worthy  of  mention  produced.  Britain  was  merely  a 
Roman  province,  deemed  of  minor  importance.  About  A.D. 
400  the  Roman  legions  were  withdrawn  from  the  island  and 
the  natives  were  left  free. 

The  Roman  occupation  of  Great  Britain  was  unproductive 
of  beneficial  influence  on  the  native  population.  It  did  not 
come  till  the  republic  had  departed  and  the  military  despotism 
had  taken  its  place.  The  principal  end  sought  by  the  Romans 
was  the  collection  of  taxes.  Landowners  were  required  to 
pay  a  state  rent  on  their  estates  of  one-tenth,  afterward  in- 
creased to  one-seventh  and  even  one-fifth  the  annual  produce. 
In  addition  to  this  corn  for  the  soldiers  and  entertainment  for 
officials  on  their  journeys  were  required,  and  the  burden  of 
maintaining  the  roads  and  bridges  fell  on  the  landowners. 
Traders  were  taxed  on  their  goods  and  craftsmen  and  labor- 
ers paid  poll  taxes.  Customs  were  collected  on  imports  and 
exports  and  one  per  cent  on  produce  sold  in  market.  Per- 
centages were  often  greatly  increased  by  the  officials  who 
gathered  the  taxes,  the  excess  going  to  their  private  use. 
Rome  merely  gave  the  people  such  protection  and  order  as  a 


654  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

military  despotism  affords.  It  did  nothing  to  educate  or 
elevate,  save  as  the  Christian  religion  followed  the  legions 
toward  the  close  of  the  period  of  Roman  rule.  The  quality  of 
this  Christianity  may  have  been  somewhat  higher  than  the 
religion  of  the  Druids,  but  it  was  closely  associated  with  the 
slavery  and  grinding  oppression  of  imperial  Rome. 

In  military  organization  they  do  not  appear  to  have  profited 
from  contact  with  the  Romans.  The  Dutch  tribes  from  the 
low  countries  soon  commenced  the  conquest  of  the  island,  the 
Jutes  being  the  first  and  gaining  a  permanent  foothold  in  Kent 
under  the  leadership  of  Hengest  and  Horsa.  The  date  of 
their  landing  is  given  as  about  449.  The  Saxons  then  came 
and  settled  around  them  in  Sussex,  Essex  and  Wessex.  Later 
came  the  Angles  and  made  way  farther  north  in  East  Anglia, 
Mercia  and  Northumberland.  Historians  speak  of  the  estab- 
lishment of  kingdoms,  but  the  territory  occupied  by  and  the 
number  of  people  included  within  the  so-called  kingdoms 
hardly  warrant  the  use  of  such  a  term.  The  system  of  or- 
ganization appears  to  have  been  a  modification  of  that  which 
had  prevailed  among  the  Germanic  tribes,  adapted  to  the 
enterprise  of  gaining  a  foothold  in  a  new  country.  Each 
band  of  invaders  came  with  wives,  children  and  chattels  and 
had  its  leader  and  chief  men,  but  the  power  of  the  state  re- 
sided in  the  whole  body  of  freemen.  They  did  not  seek  the 
subjugation  of  the  native  tribes  and  the  establishment  of  a 
government  over  them,  such  as  the  Romans  had  maintained, 
but  lands  for  themselves.  They  therefore  killed  or  drove  out 
the  natives  who  opposed  them.  The  settlements  they  estab- 
lished were  mainly  devoid  of  admixture  with,  the  native 
people,  except  from  captive  women  and  a  few  British  slaves. 
The  movement  was  a  transplanting  of  Germanic  tribes 
on  English  soil  and  crowding  the  native  population  out, 
in  much  the  same  manner  that  their  descendants  came  to 
America  and  took  land  for  occupation  from  the  Indians. 
The  process  of  settlement  in  each  case  was  gradual  and 
accompanied  by  exterminating  wars.  New  territory  was 
conquered  as  the  numbers  of  Saxons  and* Angles  increased. 
They  came  as  heathens  worshipping  Woden  and  the  other 


THE  BRITISH  EMPIRE  ,        6S5 

German  gods.  The  process  of  conquest  was  slow,  but  con- 
tinuous till  about  the  beginning  of  the  seventh  century,  when 
the  Saxons  and  Angles  had  become  dominant  over  the 
greater  part  of  England  and  southern  Scotland.  The  intro- 
duction of  Christianity  among  the  conquerors  is  mentioned 
as  contemporaneous  with  the  change  from  a  process  of  ex- 
termination of  the  Celts  and  Britons  to  one  of  more  civi- 
lized conquest.  Though  the  whole  island  is  now  under  the 
rule  of  the  same  government,  the  descendants  of  the  ancient 
inhabitants,  who  preceded  the  Saxons  and  Angles,  still  abide 
in  Wales,  Cornwall,  Scotland  and  to  some  extent  in  other 
parts,  with  surprisingly  little  admixture  of  Dutch  blood.  The 
invaders  preserved  their  own  language,  laws  and  customs,  as 
well  as  purity  of  race,  taking  but  little  of  either  from  the 
ancient  inhabitants  or  the  remnants  of  Roman  civilization. 
They  brought  with  them  the  German  system  of  land  tenure, 
the  title  resting  primarily  in  the  community,  which  annually 
assigned  to  each  his  special  holding  for  purposes  of  tillage 
and  habitation,  reserving  the  pastures  and  timber  lands  to  be 
used  in  common.  The  custom  of  changing  private  allotments 
did  not  long  continue.  The  mark  or  township  was  the  primary 
political  division,  having  its  assembly  of  freemen  by  which 
its  affairs  were  regulated  and  its  common  property  managed. 
The  division  of  the  country  into  tithings,  hundreds  and  coun- 
ties did  not  take  place  till  later,  after  a  central  authority  had 
been  established.  The  invading  Saxons  and  Angles  came 
under  the  leadership  of  their  Hertogen  in  war  who  in  peace 
were  their  earldormen.  There  were  the  freemen,  who  were 
recognized  as  entitled  to  take  part  in  all  public  assemblies  as 
well  as  to  fight  in  the  wars,  an  intermediate  class  not  members 
of  the  tribes,  and  the  thralls  or  slaves.  Some  distinctions  ex- 
isted among  freemen,  forming  the  germs  of  future  nobility. 
The  military  leader,  there  as  on  the  continent,  had  his  imme- 
diate personal  followers,  who  gave  him  added  strength  and 
importance,  and  on  whom  he  conferred  special  favors  as  a 
result  of  successful  military  operations.  No  right  of  heredi- 
tary leadership  was  recognized,  but  the  free  choice  of  the 
people  usually  fell  on  members  of  the  chief  families,  reputed 


656  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

descendants  of  Woden.  As  the  successful  leaders  extended 
their  conquests  and  increased  their  ifollowings  a  greater  meas- 
ure of  authority  was  naturally  assumed.  The  public  assembly 
of  a  mark  might  well  include  all  the  freemen,  but  when  the 
authority  of  a  single  man  was  recognized  throughout  a  large 
district  and  by  a  great  number  of  people,  only  the  principal 
men  attended  the  national  assemblies.  The  development  of 
kingly  authority  among  the  new  masters  of  the  soil  was  slow 
and  gradual,  and  came  as  a  result  of  military  combination.  In 
course  of  time  the  forces  of  many  communities,  led  by  their 
separate  chiefs,  were  united  under  a  superior  leader,  who  was 
styled  a  cyning  (king),  but  this  authority  came  from  the  people 
who  chose  him,  and  his  influence  depended  largely  on  his  per- 
sonal qualities.  In  consonance  with  the  prevailing  ideas  of 
equality  of  rights  among  freemen,  the  law  of  inheritance 
gave  to  each  male  child  an  equal  share  in  the  possessions  of 
the  parent.  No  rule  of  primogeniture  was  thought  of.  Cap- 
tives and  their  offspring  were  slaves,  without  political  or  prop- 
erty right. 

There  were  no  written  laws.  Custom  and  tradition  alone 
furnished  the  rules  to  be  observed.  These  recognized  payment 
of  weregeld  for  the  killing  of  another,  the  amount  depending 
on  the  rank  of  the  person  slain.  Of  the  elaborate  system  of 
feudal  tenures  or  of  the  nice  legal  rules  which  developed  later, 
the  earliest  settlers  knew  nothing.  They  were  neither  town 
builders  nor  traders,  but  each  primary  community  occupied 
its  small  district,  tilled  the  soil,  tended  its  herds  and  lived  on 
the  products  of  domestic  industry.  The  assembly  of  the  free- 
men of  the  mark  exercised  primitive  legislative,  executive  and 
judicial  [functions  and  regulated  local  affairs.  It  may  be 
here  noticed  that  in  Kent,  which  was  first  occupied  and  soon 
shielded  by  the  Saxons  on  the  north  and  west  from  the  attacks 
of  the  natives,  primitive  customs  and  ideas  were  better  pre- 
served and  more  persistent  than  among  those  who  came  later 
and  fought  harder.  The  custom  known  as  gavelkind,  by  which 
the  lands  of  the  father  are  divided  among  all  his  sons  instead 
of  descending  to  the  eldest  alone,  may  be  mentioned  as  a  sig- 
nificant one.    This  first  conquest  under  the  leadership  of  Hen- 


THE  BRITISH  EMPIRE  657 

gest  and  Horsa  is  spoken  of  sometimes  as  the  establishment 
of  a  kingdom,  but  it  was  a  kingdom  in  which  the  assembled 
freemen  ruled.  The  west  Saxons,  who  settled  in  495  in 
Hampshire  under  the  leadership  of  Cerdic  and  Cynric,  their 
earldormen,  took  the  lead  in  developing  a  central  authority 
from  which  the  first  kings  of  England  came  into  being. 

For  brevity  let  us  term  all  the  Dutch  invaders, — Jutes,  An- 
gles and  Saxons — as  Saxons,  though  the  name  be  not  strictly 
correct.  These  with  the  Celts  are  the  main  progenitors  of  the 
present  population  of  the  British  Isles.  It  is  difficult,  and  in 
fact  impossible,  to  give  a  full  and  definite  description  of  the 
organization  of  the  Celtic  tribes  at  or  prior  to  the  Saxon  in- 
vasion. The  accounts  we  have  of  them  are,  to  a  considerable 
extent,  deductions  from  much  later  observations  and  the  ac- 
counts of  the  Celts  in  France  at  a  considerably  earlier  date. 
That  polyandry  existed  among  them  seems  well  established, 
both  by  the  direct  statement  of  Caesar  and  the  prevalence  of 
the  custom  in  later  times.  Polygyny  was  also  allowable. 
The  Saxons,  in  common  with  the  other  Germanic  tribes, 
were  monogamists,  and  the  comparative  purity  of  their  do- 
mestic relations  is  beyond  doubt  one  of  the  greatest  sources 
of  their  national  strength.  Among  the  Celts,  however, 
women  were  not  enslaved,  but  their  relative  position  seems 
to  have  been  about  as  high  as  with  the  Germans.  Relation- 
ship was  traced  by  the  female  line  and  female  leaders,  and 
later  rulers,  were  not  uncommon.  The  women  were  also 
often  accorded  the  privilege  of  going  to  war  along  with  the 
men,  and  were  not  wanting  in  courage.  The  joint  family 
(Irish  fine)  owning  and  cultivating  a  family  estate  under  the 
general  direction  of  an  elective  head,  usually  the  oldest  or 
most  capable  male  member  of  the  house,  is  sometimes  men- 
tioned as  the  political  unit  in  Celtic  society.  This  family  was 
a  kind  of  general  partnership  with  a  common  estate,  protecting 
its  members  and  answering  for  their  conduct,  and  might  in- 
clude several  generations  and  persons  removed  several  degrees 
from  a  common  ancestor.  From  this  joint  family  the  petty 
tribe  or  village  (tuath)  developed,  and  from  the  combination 
of  more  or  less  of  these  according  to  circumstances,  the  vicissi- 


658  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tudes  of  war  and  the  possession  of  land,  the  tribe  was  formed. 
Over  the  village  {tuath)  a  chief  was  chosen  and  over  the  tribe 
a  king,  who  might  be  deposed.     His  authority  was  small,  but 
grew  with  time,  the  increase  of  contributions  and  the  exercise 
of  military  power.     A  singular  custom  was  that  of  following 
the  installation  of  a  king  by  the  election  of  a  Tanist,  who 
would  be  his  successor.     In  case  the  Tanist  died  before  the 
king  another  was  chosen  at  once,  so  that  there  was  always  a 
successor  to  watch  the  king,  often  chosen  from  a  rival  line. 
The  most  substantial  basis  for  the  king's  power  in  early  times 
was  his  possession  of  a  portion  of  the  tribal  lands  in  addition 
to  his  private  property.    To  this  was  added  a  right  to  quarter 
on  his  subjects  and  a  system  of  tribute  in  kind  from  the  family 
to  the  village  king  and  from  him  to  the  over  king,  amounting 
in  later  times  to  a  sort  of  feudal  system  of  land  tenure.    The 
whole  system  seems  to  have  been  based  on  the  idea  of  relation- 
ship and  the  selection  of  heads  of  the  households.     Provision 
for  every  member  of  a  household  was  recognized  as  incum- 
bent on  the  joint  family,  and  the  chief  or  king  was  but  the 
head  of  the  enlarged  household.     Neither  popular  assemblies 
nor  judicial  tribunals  were  known,  the  gatherings  were  domes- 
tic or  tribal,   and  general  law   was   wanting.      Family  and 
tribal  customs  furnished  the  rules  for  the  enjoyment  of  prop- 
erty and  for  the  domestic  relations.    The  tribal  or  clan  system 
continued  in  full  force  among  the  Celts  of  Scotland  to  a  much 
later  time  than  elsewhere.     In  Ireland  the  standing  of  the 
individual  came,  at  a  comparatively  early  date,  to  depend  on 
his  possessions.     The  representative  citizen  was  a  landowner 
or  member  of  a  land-owning  family,  the  possessor  of  twenty- 
one  cows  and  styled  aire,  or  bo-aire  where  he  had  only  the 
cattle.     A  higher  rank  was  that  of  flath,  based  on  superior 
holdings  in  severalty.    The  general  system,  however,  was  one 
of  common  tenure  and  cultivation  by  a  greater  or  less  number 
of  kindred  people. 

The  Saxon  invaders  came  as  pagans  seeking  an  abiding 
place.  They  brought  with  them  their  families,  their  customs, 
and  their  race  characteristics.  Purity  of  domestic  relation 
is  mentioned  as  one  of  these.     Though  monogamy  was  the 


THE  BRITISH  EMPIRE  659 

rule,  there  were  those  among  the  rich  and  powerful  who  in- 
dulged in  a  plurality  of  wives,  ,but  such  cases  were  exceptional 
in  any  class.  It  seems  beyond  doubt  that  women  were  more 
highly  respected  by  them  than  among  most  barbarous  and  some 
more  cultured  nations,  yet  it  must  be  remembered  that  they 
were  a  coarse  and  brutal  people  and  the  mating  was  not  in  ac- 
cordance with  refined  or  romantic  notions.  The  husband 
bought  his  wife,  paying  a  part  of  the  price  to  her  father  and  a 
part  as  a  provision  for  her.  If  she  misconducted  herself  after 
marriage,  the  husband  could  expel  her  from  his  home,  if  an- 
other man  ran  away  with  her,  he  was  required  to  pay  the  hus- 
band the  same  penalty  as  for  taking  a  life  and  in  addition  to 
buy  him  another  wife.  Over  his  children  the  father  had  full 
power,  but  over  his  wife  his  authority  was  limited  by  the 
claims  of  her  relatives.  If  she  was  murdered,  they  were  en- 
titled to  the  were-geld,  and  if  she  committed  murder  they  were 
required  to  pay  for  it.  A  marked  difference  between  the 
parental  authority  of  the  Roman  and  of  the  German  father 
was  that,  while  that  of  the  former  continued  through  life,  that 
of  the  latter  ended  when  the  son  was  invested  with  shield  and 
spear  and  became  a  warrior  and  citizen.  For  crimes  com- 
mitted the  right  of  redress  was  in  the  injured  party's  own 
hands,  subject  to  exemption  from  his  vengeance  by  payment 
of  money.  For  murders  a  scale  of  prices  was  fixed,  graduated 
according  to  the  rank  of  the  person  killed.  The  principle  of 
the  lex  talionis  was  recognized,  if  payment  was  not  ma'de,  and 
life  for  life,  eye  for  eye,  etc.,  were  exacted. 

In  the  social  scale  four  orders  are  mentioned.  There  were 
slaves,  theows  or  thralls,  but  these  were  not  numerous,  nor 
w^as  their  condition  one  of  great  hardship.  They  were  assign- 
ed homes  and  required  to  till  the  land  and  return  part  of  the 
produce  to  the  master.  Offenses  against  slaves  were  punish- 
able by  fines,  graded  according  to  the  rank  of  the  master. 
Next  in  order  above  them  were  the  loet,  theoretically  free  but 
bound  to  the  land  and  the  service  of  the  lord.  Their  persons 
could  not  be  sold  as  could  the  slaves,  but  they  could  neither 
desert  the  lord  nor  his  land,  which  they  were  bound  to  till  for 
his  benefit  in  part  and  also  to  do  him  services  of  various  kinds. 


66o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  ceorl  was  the  ifreeman  and  the  soldier,  entitled  to  his  al- 
lotment of  land  and  to  his  vote  in  the  public  assembly  and 
bearing  his  share  of  public  responsibility.  At  the  top  of  the 
social  ladder  was  the  eorl,  for  whose  life  triple  the  sum  of 
were-geld  paid  for  that  of  a  ceorl  was  required.  Just  what 
formed  the  basis  of  this  distinction  at  first,  it  is  hard  to  tell, 
but  later  it  was  based  on  land  tenure.  This  rank  does  not  ap- 
pear to  have  carried  with  it  any  political  power,  but  merely  a 
higher  social  status  and  protection  by  higher  fines  for  injuries 
sustained.  Political  distinction  among  the  tribes  at  the  time 
of  the  invasion  began  and  ended  with  the  ealdormen,  called 
in  war  hertogen,  chosen  leaders  of  the  free  warriors.  In  con- 
sidering this  organization  of  society  it  must  be  borne  in  mind 
that  the  principles  of  its  construction  were  not  declared  by 
any  great  recognized  legislative  or  governmental  authority, 
but  resulted  from  the  environments  and  peculiarities  of  the 
people.  The  petty  kings  and  the  feudal  system,  which  devel- 
oped later,  came  as  products  of  new  environments  and  con- 
tinued military  operations.  Arbitrary  powers  are  rarely 
conferred  by  the  people,  but  are  usually  assumed  by  military 
leaders  having  a  sufficient  organized  force  to  compel  obedience 
to  their  authority  and  submission  to  the  terms  imposed.  In 
studying  the  evolution  of  kingly  rule  in  Britain  we  shall  make 
better  progress,  if  we  wholly  disabuse  our  minds  of  the 
idea  that  in  its  inception  it  rested  on  any  moral  basis.  The 
Saxon  invaders  came  seeking  homes  for  themselves  at  the 
expense  of  the  natives.  They  offered  no  price  but  took  the 
lands  by  force.  They  killed  or  drove  away  the  ancient  inhabit- 
ants, robbing  them  of  land  and  all  other  property  they  could 
find.  The  utmost  limit  of  their  mercy  was  to  let  a  few  live  in 
slavery.  The  leaders  of  these  invading  tribes  were  bloody  and 
merciless,  and  their  followers  shared  the  same  spirit.  Of 
justice  based  on  any  moral  foundation  they  had  little  if  any 
conception.  Might  was  the  sole  test  of  right  in  the  struggle 
with  the  Celts,  and  soon  became  the  basis  of  rights  asserted  by 
the  leaders.  There,  as  on  the  continent,  favorite  leaders  were 
surrounded  by  followers  closely  attached  to  their  persons  and 
interests,  classed  as  gesiths,  comrades,  or  thegns,  servants. 


THE  BRITISH  EMPIRE  66i 

These  gave  the  chief  his  neucleus  of  power  and  were  often  the 
cause  of  his  selection  as  leader  of  the  tribe  in  war.  The 
gesiths  ate  at  the  lord's  table,  lodged  in  his  house,  were  his 
companions  in  battle  during  war  and  in  hunting,  drinking  and 
gambling  in  times  of  peace.  The  thegns  were  necessarily  in- 
struments of  his  will  and  dependants  on  his  table.  For  the 
support  of  these  dependants  the  leader  required  an  increased 
allotment  of  land,  and  with  their  support  he  was  in  a  position 
to  enforce  his  demands  for  a  large  share  of  any  newly  acquired 
territory.  Early  in  the  history  of  the  Saxon  conquest  there 
came  to  be  two  classes  of  holdings,  those  of  the  freemen  with 
their  system  of  common  tenure,  changing  allotments  for  culti- 
vation and  regular  rotation  of  crops ;  and  the  holdings  of  the 
favored  leaders  and  their  immediate  companions.  There  soon 
came  to  be  folk-lands,  and  hoc-lands.  The  folk-lands  descended 
to  the  heirs  and  could  not  be  devised  away  from  them,  while 
the  hoc-lands,  book  lands,  could  be  given  by  will  to  whomso- 
ever the  owner  pleased.  Boc-lands  again  were  often  exempted 
from  the  common  burdens  by  the  terms  of  the  grants.  In  the. 
earliest  periods  of  Saxon  occupancy  the  new  lands  were  dis- 
posed of  by  the  assembly  of  freemen,  and  the  share  of  the 
leader,  as  well  as  of  the  ceorls,  was  determined  by  the  general 
voice,  but,  as  the  following  of  the  Hertogen  increased  and 
their  powers  grew,  they  assumed  the  kingly  title  and  consulted 
only  the  wit  an  or  council  of  leading  men.  At  first  the  holdings 
of  the  leaders  did  not  differ  from  those  of  other  freemen. 
They  had  land  ifor  their  cattle  and  for  cultivation,  but  no 
power  of  taxation  and  no  system  by  which  the  tribe  was  re- 
quired to  contribute  to  their  support.  As  they  came  into  pos- 
session of  large  allotments  of  lands,  they  gradually  evolved  a 
system  of  granting  portions  to  their  followers  on  terms  of 
service  and  of  payment  of  certain  dues.  The  leaders  also 
naturally  became  the  principal  slave  owners,  and  were  thus  en- 
abled to  cultivate  larger  tracts  than  the  common  people.  One 
of  the  earliest  perquisites  of  the  petty  kings  was  derived  from 
fines  and  forfeited  estates.  Sometimes  these  were  imposed  for 
real  transgressions  of  just  laws,  but  perhaps  more  frequently 
because  the  king  wanted  revenue  or  estates.     As  the  kings 


662  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

extended  their  power  over  greater  districts  and  more  people, 
the  influence  of  the  popular  assembly  on  the  general  affairs 
of  the  tribe  or  petty  kingdom  diminished  and  that  of  the  mili- 
tary head  grew.  The  zvitan  was  more  clearly  allied  in  interest 
with  the  king  than  with  the  freemen.  Law-making  began,  and 
its  purpose  was  to  increase  the  power  and  the  privileges  of 
the  king  and  his  trusted  followers.  The  leading  purpose  of 
laws,  promulgated  as  a  result  of  military  organization  or  con- 
quest, is  rarely  if  ever  the  promotion  of  justice  between  all 
classes,  but  rather  the  reverse,  the  establishment  of  rules  of 
special  privilege  casting  burdens  on  the  many  for  the  enrich- 
ment of  the  ifew.  The  Saxon  leaders  soon  assumed  the  title 
of  kings  and,  while  still  elected  and  sometimes  deposed  by  vote 
of  the  assembled  freemen,  their  powers  and  privileges  grew 
rapidly.  They  summoned  the  national  meetings  and  called  out 
the  military  force.  On  their  journeys  they  were  entitled  to 
entertainment  and  could  call  on  the  people  for  carts  and  ani- 
mals to  transport  them.  Their  earldormen  and  officers  might 
also  do  the  like.  The  judicial  power,  which  primarily  rested  in 
the  assemblies  of  freemen,  was  assumed  by  the  wit  an  in  im- 
portant matters  and  then  by  the  king.  In  the  earliest  stages  of 
the  growth  of  kingly  power  the  concurrence  of  the  witan  was 
necessary,  for  on  its  members  the  king  relied  for  the  enforce- 
ment of  the  decision,  but  with  the  growth  of  his  power  came 
greater  recognition  of  his  right  to  rule,  till  he  alone  decided 
and  others  executed  his  will.  The  division  of  the  people  for 
state  purposes  was  into  townships  or  tithings  and  hundreds, 
containing  theoretically  and  at  first  perhaps  actually  ten  and 
one  hundred  freemen,  respectively.  The  terms,  however,  soon 
came  to  denote  territorial  divisions  rather  than  actual  numbers. 
In  each  of  these  in  primitive  times  public  affairs  were  regulated 
by  public  assemblies  of  the  free  warriors,  who  chose  their  local 
head  men.  The  township  assembly  laid  off  the  common  land 
for  tillage,  assigned  to  each  his  share  of  the  common  field  and 
ordered  the  succession  of  crops  and  fallow.  The  hundred  was 
accountable  for  the  preservation  of  order,  the  punishment  of 
crimes  and  came  to  be  the  unit  for  purposes  of  finance  and 
police.     A  monthly  gemot  or  court  was  held,  at  which  all  the 


THE  BRITISH  EMPIRE  663 

freemen  sat  as  judges.  Later  these  were  presided  over  by 
officers  appointed  by  the  king  the  gerifa,  reeve  or  sheriff. 
Above  these  were  the  county  courts  or  general  assembHes  of 
the  people  of  the  counties.  These  in  early  times  corresponded 
with  general  assemblies  of  the  tribes  and  exercised  the  sov- 
ereign political  and  judicial  power.  This  power  soon  passed 
to  the  king  and  his  witenagemot,  which  was  not  a  representa- 
tive body  selected  by  the  freemen,  but  the  companions  of  the 
king  and  the  richest  and  most  daring  members  of  the  state. 
With  the  transfer  of  political  power  from  the  body  of  free- 
men to  the  king  and  his  council  of  followers,  in  an  age  when 
might  alone  made  right,  came  naturally  a  change  of  the  pur- 
poses of  legislation.  Common  ends  and  interests  were  no  lon- 
ger objects  to  be  attained,  but  special  interests  and  persona] 
privileges.  As  the  various  bands  of  Saxons  and  Angles  fol- 
lowed after  the  Jutes  and  drove  back  the  more  ancient  inhabi- 
tants from  a  large  part  of  the  island,  jealousies  among  leaders 
and  a  desire  for  each  other's  possessions  brought  on  wars  be- 
tween the  invading  tribes  as  well  as  with  the  Celts,  and  after 
the  introduction  of  Christianity  and  long  contact  between  the 
races,  alliances  were  sometimes  formed  in  which  Scots,  Picts 
and  Saxons  fought  other  Saxons  for  mastery.  By  the  end  of 
the  sixth  century  we  read  that  the  Heptarchy  had  been  es- 
tablished, and  also  that  there  were  seven  kingdoms  among  the 
Picts,  but  these  cannot  be  regarded  as  permanent.  War  was 
the  favorite  pursuit  of  the  leaders  and  largely  of  the  people. 
The  morals  of  the  times  were  essentially  those  of  barbarous 
tribes.  Drunkenness  and  gambling  were  common  vices.  The 
primitive  idea  of  united  action  against  the  native  Celts  for  the 
common  benefit  faded  away  as  leaders  gained  power  and 
fought  for  personal  aggrandizement  rather  than  tribal  advan- 
tage. The  democratic  customs,  which  had  prevailed  on  the 
continent,  were  not  extinguished  at  a  blow,  nor  entirely  at  any 
time,  but  the  growth  of  kingly  power  and  its  necessary  at- 
tendant, the  power  of  his  chief  supporters,  came  rapidly  at  the 
expense  of  primitive  democracy.  When  the  law-making  power 
fell  into  the  hands  of  the  kings  and  their  henchmen,  they  took 
good  care  to  add  to  the  burdens  of  the  people  and  increase  their 


664  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

own  revenues  and  powers.  Injustice  was  the  purpose  of  the 
lawmaker  and  continued  to  be  for  centuries,  till  an  intricate 
system  of  most  unjust  laws  was  evolved  and  taught  as  divinely 
ordained  and  devised  for  the  common  good.  In  England, 
though  there  have  been  times  when  temporal  and  spiritual 
power  were  opposed,  in  the  main  the  kingly  oppressors  have 
found  their  best  and  strongest  support  in  the  clergy,  who  have 
diligently  taught  obedience  and  submission  to  king  and  church. 
Education  is  the  sure  foundation  of  any  system,  whether  of 
government  or  religion.  The  people  must  be  taught  to  obey 
and  to  believe.  In  England  the  increasing  armies  of  the  petty 
kings  became  schools,  in  which  free  men  were  taught  obedi- 
ence to  the  commands  of  leaders.  The  churches  became 
schools,  in  which  the  divine  right  of  rulers  was  inculcated  and 
the  duty  of  submission  and  contribution  to  the  treasury  of  the 
king  and  of  the  church  was  constantly  proclaimed.  In  course 
of  time  the  rights  of  kings  to  oppress  and  of  high  church  offi- 
cials to  enjoy  great  revenues  came  to  be  the  only  rights  dis- 
cussed, and  the  fundamental  moral  principles  affecting  the  just 
relations  of  man  to  man  were  often  entirely  lost  sight  of. 
Some  good  men  there  were  in  power  in  church  and  state  at 
times,  but  the  early  rules  of  advanced  and  enlarged  organiza- 
tion of  society  were  almost  exclusively  in  the  interest  of  the 
promoters  of  the  organization.  The  laws  of  King  Ethelbert, 
who  ruled  in  Kent  and  the  south  at  the  advent  of  the  mission 
of  St.  Augustine  and  was  converted  under  his  preaching,  are 
not  much  but  a  classification  of  fines  to  be  paid  for  murders 
and  thefts  committed,  graded  according  to  the  rank  of  the 
party  injured,  and  according  the  church  and  clergy  protection, 
even  greater  than  that  afforded  the  king  and  his  officers,  that 
is,  punishing  offenses  against  them  with  even  higher  fines.  The 
power  of  the  church  was  rapidly  extended,  and  the  spiritual 
rulership  of  Rome  became  a  substantial  exercise  of  actual 
power  through  the  medium  of  the  officials  of  the  church.  It 
would  be  foreign  to  our  plan  to  attempt  to  follow  the  details, 
more  or  less  questionable,  of  the  struggles  of  the  kings  of  Sus- 
sex, Wessex,  Kent,  Mercia,  Northumbria  and  Anglia  with 
each  other  or  with  the  Celtic  population,  or  the  schemes  by 


THE  BRITISH  EMPIRE  665 

which  the  papal  power  and  the  importance  of  Bishops  and 
priests  was  advanced.    It  is  a  dreary  tale  of  cruelty  and  wrong. 
Wars  ceased  to  partake  of  the  characteristics  which  prevailed 
in  the  early  days  of  the  Saxon  advance  into  England,  and  be- 
came merely  struggles  for  the  ascendency  of  leaders,  where  the 
common  people  on  both  sides  of  the  contest  suffered,  without 
substantial  ground  for  hope  of  gain.    As  time  wore  on  Saxon 
became  opposed  to  Saxon  more  than  to  Celt,  and  the  princi- 
pal object  was  to  subjugate  Saxon  states  to  covetous  leaders. 
The  heptarchy  was  ruled  by  a  varying  number  of  kings  till 
Egbert,  trained  in  the  military  school  of  Charlemagne,  came 
to  the  throne  of  Wessex  and  about  827  succeeded  in  extending 
his  power  over  all  the  other  states  and  Wales.     His  govern- 
ment of  the  other  kingdoms  was  not  through  an  official  system 
acting  under  his  direction,  but  by  tributary  kings,  who  ac- 
knowledged him  as  their  sovereign.  The  union  of  all  the  petty 
kingdoms,  thus  effected,  was  not  productive  of  the  advantages 
of  one  central  government  as  a  protection  against  outside  foes, 
for  he  failed  to  establish  a  system  of  military  organization 
adapted  to  defense  against  invaders  by  sea.     When  Egbert 
became  sovereign  of  all  the  Anglo  Saxons,  nearly  four  hun- 
dred years  had  elapsed  since  the  advent  of  the  Jutes  in  Kent. 
Before  this  event  a  new  movement  of  people  bearing  a  differ- 
ent name  set  in  from  the  Jutland  peninsula,  whence  the  Jutes 
had  come.    In  793  there  was  a  landing  of  Northmen  at  Lindes- 
farne,  perhaps  not  the  first  of  their  incursions.    This  was  fol- 
lowed by  landings  of  Danes  and  Norsemen  at  various  points  in 
England,  Scotland  and  Ireland  and  by  832  Thorkel  had  es- 
tablished himself  as  king  in  the  north  of  Ireland  at  Armagh. 
The  first  attacks  were  merely  by  marauding  bands,  but  in 
England,   as   in  Ireland,   they  came  in  increasing  numbers. 
About  850  a  party  wintered  on  the  island  of  Sheppey,  and  in 
the  following  year,  reinforced  with  350  ship  loads  of  warriors, 
they  sailed  up  the  Thames,  sacked  and  burned  London  and 
Canterbury.     Permanent  settlements  were  effected  about  866, 
and  the  Danes  in  large  force  invaded  East  Anglia  and  thence 
overran  Deira  and  Northumbria.     The  invaders  were  wor- 
shippers of  Woden  and  the  heathen  gods,  whom  the  Saxon 


(^  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

invaders  of  four  hundred  years  before  had  worshipped,  and 
they  were  merciless  to  the  clergy  as  well  as  the  laity.  Mere 
piratical  plundering  and  murdering  in  course  of  time  became 
converted  into  the  greater  devastation  of  continued  war  with 
merciless  destruction  of  all  who  came  in  their  way.  By  876 
a  disposition  to  settle  down  and  till  the  soil  began  to  manifest 
'itself  among  the  invaders,  after  they  had  made  a  great  part  of 
England  desolate,  and  Half  dene  began  parcelling  out  lands 
among  his  followers.  The  reign  of  Alfred,  871  to  900,  has 
been  a  favorite  basis  for  romantic  tales  of  which  he  was  the 
hero.  From  the  Saxon  forces  in  a  condition  of  utter  disper- 
sion he  organized  armies  and  extended  his  power  over  south- 
ern England,  defeating  the  Danes  in  many  battles.  The 
devastating  wars  had  resulted  in  the  extinguishment  of  all 
learning.  Alfred  has  the  credit  of  establishing  schools  and 
aiding  the  clergy.  As  a  military  organizer  he  exhibited  energy 
and  capacity  and  not  only  prepared  for  the  defense  of  his 
country  by  land  forces  but  built  ships  and  met  the  Northmen  at 
sea,  where  he  gained  some  victories.  His  schools  were  neces- 
sarily dependent  on  monks  and  priests,  whom  he  invited  from 
other  parts  of  the  island  and  the  continent  to  instruct  the  no- 
bility. He  also  caused  the  Winchester  Chronicle  to  be  written. 
His  fame  is  doubtless  largely  due  to  the  scholars  whose  ser- 
vices he  employed.  He  published  a  code  of  laws,  compiled 
from  the  previous  codes  of  ^thelbert,  Ine  and  Off  a,  with  ex- 
tracts from  the  book  of  Exodus,  thus  making  a  single  system 
of  laws  for  his  kingdom,  which,  however,  contained  no  orig- 
inal legislation.  By  this  time  kingly  power  had  made  con- 
siderable advance.  The  king  in  person  exercised  the  supreme 
judicial  power  and  heard  appeals  from  the  inferior  courts, 
which  had  become  sore  oppressors  of  the  lower  classes  through 
the  forms  oif  judicial  proceedings.  He  is  credited  with  having 
been  inclined  to  curb  the  nobility  and  award  some  measure  of 
justice  to  the  common  people.  The  ealdormen  and  reeves  had 
ceased  to  be  elective  officers  and  held  by  appointment  of  the 
king.  They  exercised  their  judicial  functions  mainly  to  estab- 
lish rules  increasing  their  own  privileges  and  those  of  the 
wealthier  order.     Taxation  had  made  some  progress  and  Al- 


THE  BRITISH  EMPIRE  667 

fred  had  his  civil  hst  of  expenditures  for  his  household,  for 
public  works,  and  gifts  to  foreigners.  He  was  a  zealous 
churchman,  imported  monks  to  found  a  monastery  and  ap- 
pointed his  own  daughter  abbess  of  a  nunnery.  He  recon- 
structed in  some  measure  the  system  by  which  the  country  had 
been  divided  into  townships,  hundreds  and  shires.  Over  each 
ten  householders  was  a  tithing  man  and  every  man  was  re- 
quired to  register  in  some  tithing.  The  whole  tithing  was 
made  accountable  for  the  conduct  of  each  member.  No  one 
could  change  his  habitation  without  a  certificate  if  rom  the  head 
of  the  tithing  to  which  he  belonged.  This  was  rendered  neces- 
sary by  the  great  numbers  of  robbers  and  vagrants,  caused  by 
the  breaking  up  of  bands  of  Danes  and  Norsemen  and  the 
disorganization  of  Saxon  society  resulting  from  the  wars. 
The  hundreds  were  held  accountable  for  crimes  committed 
within  them,  and  courts  were  required  to  be  regularly  held  in 
tithings,  hundreds  and  counties  for  the  administration  of  jus- 
tice. In  nothing  is  the  growth  of  royal  power  better  shown 
than  in  his  dealings  with  public  lands.  From  his  reign  dates 
the  exercise  by  the  king  of  sole  power  to  grant  boc-ldinds  by 
charters  in  his  own  name  without  consultation  with  his  Witan. 
Alfred  had  visited  Rome  in  his  youth  and  was  a  devout  adher- 
ent of  the  pope,  with  whom  he  kept  in  correspondence. 

Though  Alfred  made  much  headway  against  the  Danes,  he 
did  not  drive  them  from  the  island,  but  they  retained  their 
holdings  in  the  north  until  the  reign  af  Athelstan,  an  illegiti- 
mate son  of  Alfred's  son  Edward,  when  the  Saxon's  sover- 
eignty was  acknowledged  by  the  Danish  kings.  Edward  made 
a  law  requiring  all  sales  of  goods  to  be  made  in  walled  towns 
in  presence  of  the  Port-reeve.  The  gerifa  or  sheriff  was  made 
the  primary  judge  in  criminal  causes  and  required  to  hold  a 
court  of  the  hundred  once  every  four  weeks.  In  the  period 
from  Alfred  to  Athelptan  the  system  of  trial  before  the  free- 
men of  the  hundred  is  said  to  have  been  modified  to  a  trial 
before  a  jury  of  twelve,  though  it  is  impossible  to  fix  definitely 
the  date  at  which  this  system  was  first  established.  That  it 
has  its  foundation  in  the  ancient  custom  of  administering  jus- 
tice by  judgment  of  the  assembled  freemen  there  seems  no 


668  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

doubt,  but  the  power  of  the  king  and  his  subordinate  officers 
grew  and  that  of  the  freemen  waned  correspondingly.  Athel- 
stan  is  given  credit  for  a  law  giving  each  merchant,  who  had 
made  three  long  voyages,  the  rank  of  thane.  He  is  said  to 
have  imposed  an  annual  tribute  on  the  Welsh  of  twenty  pounds 
of  gold,  two  hundred  pounds  of  silver  and  twenty-five  thou- 
sand head  of  cattle,  apparently  a  heavy  burden  for  those  times. 
He  enjoys  the  distinction  also  of  having  contracted  marriages 
for  his  sisters  with  distinguished  foreign  princes,  one  with  the 
father  of  Hugh  Capet,  another  to  Otto,  afterward  Emperor 
of  Germany,  a  third  to  Louis,  king  of  Provence,  and  a  fourth 
to  Charles  the  Simple.  A  king  of  England  had  thus  attained  a 
standing  among  crowned  heads  and  a  desire  for  alliances  with 
them  for  members  of  his  family. 

With  this  growth  of  kingly  power  came  also  increased  sever- 
ity of  rule  and  heavy  punishments  for  petty  offenses.  Theft 
of  property  worth  over  eight  pence  by  a  person  over  twelve 
years  old  was  made  punishable  with  death.  The  growth  of  the 
ifeudal  system  was  promoted  by  requiring  that  "lordless  men, 
of  whom  no  man  can  beget  his  rights"  be  required  to  find 
them  a  responsible  lord  in  the  folkmote.  Trial  by  ordeal  as 
a  possible  escape  from  punishment  for  crime  had  come  into 
use.  The  ordeal  by  hot  iron  was  conducted  with  religious 
ceremonies,  one  method  involved  the  carrying  by  the  accused 
of  a  hot  iron  in  his  hand,  previously  sprinkled  with  holy  water, 
a  distance  of  nine  feet,  where  he  might  drop  it.  The  hand  was 
then  bound  up,  and  his  guilt  or  innocence  was  declared  after 
three  days  by  the  appearance  of  it.  The  ordeal  by  hot  water  re- 
quired him  to  put  his  hand  in  boiling  water  and  take  up  a  stone 
immersed  in  it  to  the  depth  of  the  wrist  or  even  the  elbow. 
In  the  ordeal  by  cold  water  he  was  immersed  in  a  pool,  if  he 
sank  he  was  innocent,  and  if  he  floated  he  was  guilty. 
The  trial  by  ordeal  was  supposed  to  be  a  method  of  obtaining 
a  divine  judgment  and  the  acquittal  of  an  innocent  man  by 
special  miracle  wrought  in  his  favor.  Its  use  shows  the  bar- 
barity and  gross  superstition  of  the  age.  In  keeping  with  this 
were  laws  regulating  the  payment  of  church  dues,  some  of 
which  were  newly  devised.     Not  only  were  there  tithes,  but 


THE  BRITISH  EMPIRE  669 

icirk  shot,  plough  alms,  and  soul-shot,  the  last  named  a  burial 
fee.  Yet  there  began  to  be  thoughts  of  charity,  and  Athelstan 
directed  that  one  poor  Englishman  be  fed  from  each  two  of 
his  farms. 

In  the  reign  of  his  successor  Edmund  a  universal  oath  of 
fealty  to  the  king  was  required,  showing  the  growth  of  feudal 
ideas.  There  were  no  marked  changes  in  the  system  or  the 
general  conditions  of  the  kingdom  till  980,  when  fresh  Danish 
invasions  from  over  the  sea  began  in  the  old  manner  with  pil- 
laging and  slaughter.  These  were  followed  by  others,  until  in 
991  King  Ethelred  paid  tribute  to  the  invaders,  without  there- 
by obtaining  protection  from  further  marauding.  The  growth 
of  kingly  power  and  of  privileges  of  the  nobility  had  not  re- 
sulted in  much  but  corresponding  oppression  for  the  multitude. 
The  people  did  not  even  gain  the  advantage  of  protection  from 
foreign  enemies  through  an  efficient  military  organization. 
The  Danes  and  Norwegians  continued  to  come  and  to  gain 
victories  till  in  1016  Cnut,  the  Dane,  established  his  power  over 
all  England.  He  fortified  his  position  by  making  the  clergy 
his  friends  and  increasing  the  already  grossly  oppressive  power 
of  the  great  landholders  over  their  dependents.  He  was  politic 
as  well  as  warlike  and  summoned  a  great  W it ena gemot  to  set- 
tle his  right  to  the  throne.  They  promptly  acknowledged  him 
as  their  lawiful  sovereign.  He  had  the  good  sense  to  accept  the 
system  of  laws  substantially  as  he  found  it,  and  to  adapt  his 
policy  to  the  prejudices  of  the  people.  He  was  remorseless  in 
removing  obstructions  to  his  power  and  did  not  hesitate  to  kill 
those  whose  influence  he  feared.  He  enforced  the  demands  of 
the  clergy  for  tithes  and  dues  in  order  to  secure  their  hearty  aid 
in  maintaining  his  authority.  He  strengthened  the  power  of 
the  nobility  by  enlarging  their  judicial  functions  over  their  de- 
pendents. There  was  a  distinct  increase  in  the  severity  of 
punishments.  The  infidelity  of  a  wife  was  punished  by  loss 
of  her  nose  and  ears,  perjury  by  death,  confirmed  offenders 
were  mutilated  by  cutting  off  feet,  hands,  putting  out  their 
eyes,  or  other  horribly  cruel  mutilation. 

The  growth  of  the  power  of  the  clergy  is  indicated  by  the 
grant  to  the  bishops  of  final  jurisdiction  in  cases  of  murder. 


670  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

That  the  king,  who  claimed  all  forfeiture  of  boc-lands,  had  be- 
come a  greaf  land  owner  is  shown  by  the  fact  that  he  required 
his  reeves  to  keep  him  supplied  from  the  produce  of  his  own 
lands,  without  levying  involuntary  contributions.  Cnut  or- 
dained that  the  lord  should  not  take  more  than  his  proper 
heriot  on  the  death  of  his  vassal,  and  that  the  rest  should  be 
distributed  under  the  lord's  direction  to  widow  and  children  or 
other  relatives.  The  lords,  being  the  judges,  seem  to  have 
been  inclined  to  extend  the  amount  of  the  heriot,  but  Cnut 
limited  it  to  a  fixed  scale  according  to  the  rank  of  the  deceased. 
This  scale,  however,  only  fixed  the  charge  on  the  estates  of  the. 
nobility,  leaving  petty  tenants  still  at  the  mercy  of  their  lords. 
XTnut's  power  did  not  depend  on  the  voluntary  support  of  the 
nobility  or  clergy  or  both.  He  kept  at  his  back  a  strong  body 
of  armed  men,  his  house  carles,  under  pay,  estimated  all  the 
way  from  1,400  to  6,000  men.  To  support  these  he  imposed 
Danegeld,  a  direct  land  tax. 

Though  Cnut  had  ruled  England,  Denmark  and  Norway,  on 
his  death  his  empire  fell  in  pieces.  His  son  Harold  took  Eng- 
land's throne  from  1035  to  1040,  followed  by  Harthacnut, 
another  son,  from  1040  to  1042,  with  whom  the  Danish 
dynasty  ended. 

The  reign  of  Edward  the  Confessor,  1042  to  1066,  fol^ 
lowed  by  Harold  January  to  October  1066  concluded  the 
period  of  Saxon  dominion.  Though  the  system  of  laws  had 
undergone  nothing  termed  a  radical  change  of  the  constitu- 
tion, and  though  there  were  still  the  same  classes  of  society 
as  in  the  early  days,  the  social  structure  through  changes  in 
proportions  had  become  altogether  different  from  that  of  the 
fifth  century.  There  were  still  freemen,  owning  their  lands 
without  being  subject  to  the  payment  of  rent  or  tribute  to  an 
overlord,  but  they  were  few  in  number  and  even  these  were 
subjected  under  the  Danes  to  a  tax  of  Danegeld  on  their 
lands,  which  no  early  Saxon  paid  to  any  ruler.  The  scheme 
of  legal  title  to  the  face  of  the  earth  was  made  to  work  out 
the  result  of  giving  to  the  king  and  the  nobility  dominion 
over  the  multitude.  The  law  of  inheritance,  so  subtle  and 
far  reaching  in  its  effects,  steadily  fortified  the  power  of  the 


THE  BRITISH  EMPIRE  671 

nobility.  The  ownership  of  a  large  tract  of  land,  assigned  to 
him  by  the  Heretog  or  king  as  his  part  of  the  spoils  of  a 
newly  conquered  district  or  an  estate  seized  by  the  king  from 
some  subject,  was  passed  down  by  inheritance  from  genera- 
tion to  generation,  giving  to  the  heir  the  same  wealth,  social 
position  and  political  influence  as  that  which  his  ancestor  had 
held.  The  weak  freeholders  were  led  to  seek  the  protection 
of  powerful  neighbors  and  in  return  for  that  protection  did 
homage,  pledged  feudal  service  and  thus  fell,  not  within  the 
protection,  but  under  the  power  of  the  lord.  Ambition  to  rule, 
gain  wealth  and  greater  power  was  the  dominant  passion  of 
the  leaders,  and  wars  for  the  aggrandizement  of  lords  tem- 
poral, and  often  of  lords  spiritual,  became  common.  Murder, 
robbery,  wholesale  burning  and  desolation  of  districts  in  the 
name  of  the  so-called  right  of  some  earl,  duke,  bishop  or 
king  were  common  occurrences,  and  to  this  day  the  questions 
as  to  the  technical  legal  foundations  of  the  claims  of  the  re- 
spective leaders  are  gravely  discussed,  as  if  matters  involving 
some  principle  of  justice.  It  was  in  fact  merely  a  question  as 
to  which  man  should  be  permitted  to  take  of  the  earnings  of 
the  people  inhabiting  a  district  all  above  a  bare  subsistence,  and 
stand  in  a  relation  to  them  which  should  give  the  power  to 
enforce  the  performance  of  military  services.  Though  there 
were  assemblies  of  the  people  under  much  the  same  names  as 
in  early  times,  the  meaning  of  terms  had  been  greatly 
changed.  The  wit  an  or  witenagemot  .of  the  kingdom  had 
wholly  lost  its  ancient  popular  character.  It  meant  merely  a 
gathering  of  earls,  bishops,  abbots  and  such  of  the  kings 
thegns  as  he  saw  fit  to  summon.  These  lords  came  to  the 
great  assembly,  often  followed  by  a  large  number  of  retainers, 
but  it  was  the  lords  only  who  had  any  voice  in  the  witan. 
Though  there  were  still  meetings  of  the  towns,  hundreds  and 
shires,  it  was  only  petty  concerns  that  they  were  allowed  to 
decide.  In  the  folkmote  of  the  county  not  all  the  freemen 
assembled,  but  the  small  towns  sent  four  men  and  their  reeve, 
and  the  large  twelve.  Twelve  thegns  were  appointed  as  a 
committee  to  transact  the  business.  The  earl,  the  bishop  and 
the  sheriff,  all  deriving  their  appointments  from  the  king,  were 


672  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

present  and  really  directed  the  proceedings.  Through  the 
county  courts  the  demands  of  the  clergy,  and  of  the  land- 
lords, were  enforced  in  accordance  with  the  rules  they  had 
succeeded  in  having  established,  which  were  called  laws. 
Criminal  causes  were  tried  and  offenders  punished.  From  the 
decisions  of  this  court  an  appeal  lay  to  the  king.  The  sheriff 
appointed  by  the  king  convened  the  court  of  the  hundred  and 
presided  over  it.  While  the  whole  body  of  freemen  were  still 
the  judges,  twelve  selected  men  actually  decided  the  causes. 
The  direct  taxes,  the  Danegeld  and  ship  geld,  were  assessed 
against  the  hundred  as  a  unit,  and  a  part  of  the  business  of 
the  court  of  the  hundred  was  to  apportion  it  among  the  town- 
ships. In  the  township  meetings  the  nearest  approximation  to 
popular  rulership  was  still  retained.  Matters  relating  to  the 
repair  of  roads,  the  rules  for  the  cultivation  of  lands  and  the 
enjoyment  of  what  still  remained  of  common  property,  were 
disposed  of  at  these  meetings.  In  these  the  lord  of  the  manor 
soon  dominated,  and  his  steward  presided  at  the  meetings, 
which  were  converted  into  the  Courts  Baron,  Customary 
Courts  and  Courts  Leet  of  later  times,  as  the  feudal  system 
grew  in  strength.  Cities  and  towns  had  begun  to  grow,  but 
there  was  little  trading  or  manufacturing,  and  the  organiza- 
tion of  town  and  country  was  practically  the  same,  the  largest 
cities  ranking  as  counties,  the  medium  ones  as  hundreds  and 
the  villages  of  sufficient  importance  as  townships.  Of  a  total 
in  round  numbers  of  283,000  adults,  it  has  been  estimated  that 
there  were  1,400  full  owners  of  land,  7,800  mesne  lords,  hold- 
ing under  a  superior,  1,100  clergy,  8,000  townsmen,  15,000 
fieemen,  2,600  merchants,  craftsmen,  bailiffs,  etc.,  25,600 
(male  and  female)  slaves,  and  the  balance  about  222,000  were 
so  bound,  either  to  the  soil  or  to  the  service  of  a  lord,  as  to 
be  practically  under  his  power  and  at  his  mercy.^ 

Of  course  strictly  accurate  figures  are  not  to  be  had,  but  the 
fact  is  beyond  question,  that  the  great  mass  of  the  population 
had  become  subject  to  the  power,  under  more  or  less  limitation 
in  practice,  of  the  great  landholders,  who  through  their  title 
to  the  soil  enforced  by  their  house  carles  or  personal  followers, 

*  Ramsey's  Foundations  of  England  512. 


THE  BRITISH  EMPIRE  673 

seized  also  substantially  all  political  power.  Thus  the  foun- 
dations of  feudalism  in  England  were  well  advanced  before 
the  advent  of  the  Normans,  and  lawyers  had  already  begun  to 
thrive  on  litigation  over  land  tenure,  but  questions  of  title  af- 
fecting large  districts  were  usually  decided  by  the  sword  and 
battle-axe,  rather  than  by  any  tribunal. 

The  church  had  brought  in  some  little  knowledge  of  let- 
ters, and  our  histories  of  the  times  come  from  native  writers 
of  that  age.  But  neither  the  learning  of  the  church  nor  the 
moral  teachings  of  Christ  had  extended  very  far  or  made  a 
very  deep  impression.  No  moral  obstacle  was  recognized  as 
standing  in  the  way  of  the  strong  leader,  who  could  take 
what  he  wished  by  force.  To  kill  an  enemy  was  still  laudable 
and  glorious,  rather  than  otherwise,  and  in  doing  this  to  kill  a 
multitude  of  his  underlings  but  added  to  the  murderer^s  re- 
nown. To  ravage,  burn  and  destroy,  and  thereby  expose 
women  and  children  to  the  elements  and  to  starvation,  were 
regarded  as  necessary  attendants  of  the  enforcement  of  the 
demands  of  a  lord,  and  even  to  butcher  them  aroused  no 
general  condemnation  from  other  lords.  Some  progress  had 
been  made  in  the  organization  of  society,  and  the  church  had 
brought  in  an  advanced  code  of  morals,  but  neither  the  kings, 
lords  nor  clergy  had  much  thought  about  justice  among  men, 
cr  the  actual  application  of  Christian  morals  to  human  affairs. 
The  power  of  kings  and  lords  was  established  for  this  benefit 
and  regarded  as  their  property.  The  high  clerical  positions 
were  similarly  esteemed.  The  rank  of  a  lord  was  measured 
by  the  extent  of  his  land,  and  of  a  priest  by  his  income. 
Neither  was  rated  according  to  the  services  he  rendered  to 
others  or  the  value  of  his  moral  teachings.  The  clergy,  in 
return  for  the  tithes  and  other  payments  they  received,  gave 
title  only  to  possessions  for  the  disembodied  spirit.  They 
took  the  temporal  benefit  and  promised  in  return  the  spiritual 
in  the  life  to  come.  The  rule  of  the  kings  and  lords  was 
established  by  force  and  bolstered  up  by  ifraud,  that  of  the 
clergy  by  fraud  aided  by  force. 

William  the  Conqueror  came  from  his  duchy  of  Normandy 
with  a  claim  of  right  to  the  crown  of  England.     He  took 


674  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

good  care  to  fortify  this  claim  with  a  strong  and  well  equipped 
army  for  those  times,  and  with  the  moral  (?)  support  of  the 
Pope.     The  battle  of  Hastings,  in  which  Harold  was  killed, 
left  England  without  a  recognized  head  or  an  organized  force 
to  defend  it.     William  possessed  the  essential  qualities  of  a 
ruler  of  men;  he  was  an  efficient  organizer.     He  was  also 
politic  in  the  methods  he  pursued  to  attach  leading  men  to  his 
interests.    He  went  to  England  burdened  with  no  philanthropic 
motives  and  hampered  by  no  conscientious  scruples.    He  took 
the  land  to  parcel  it  out  among  his  followers  or  retain  it  as 
his  own.    A  few  of  the  old  Saxon  lords,  who  rendered  homage, 
were  allowed  to  retain  their  holdings,  but  most  of  the  great 
estates  were  transferred  to  his  Norman  followers.    The  great 
church  appointments,  with  a  little  more  respect  for  form  and 
a  little  more  ceremony,  were  then  taken  from  their  English 
incumbents  and  also  conferred  on  Normans.     This  was  ren- 
dered easy  by  his  alliance  with  the  Pope,  who  sanctioned  the 
changes.     Toward  those  who  quietly  submitted  he  was  some- 
what gracious,  but  resistance  of  his  authority  was  most  merci- 
lessly crushed.     Nothing  could  exceed  the  heartless  barbarity 
with  which  he  desolated  York,  Cheshire,  Shropshire,  Derby- 
shire and  Staffordshire,   for  rebellion  against  his  authority. 
Men,   women   and  children  were  ruthlessly   slaughtered,   all 
buildings  burned  and  the  country  made  a  desolate  wilderness, 
swept  clean  of  all  means  of  subsistence  to  insure  the  destruc- 
tion of  its  presumptuous  people,  whose  lords  had  refused  to 
bear  him  allegiance.     In  William's  eyes  only  the  rich  and 
powerful  were  entitled  to  any  consideration.      Nobles  who 
though  guilty  of  rebellion  afterward  submitted  and  did  hom- 
age, were  pardoned,  but  their  poor  followers  were  slaughtered. 
William  proceeded  at  once  to  fortify  his  power  by  the  con- 
struction of  strong  castles  at  all  important  points,  in  which 
he  stationed  his  most  trusty  followers.     The  feudal  system, 
which  had  already  made  much  progress  under  the  Saxons, 
was  now  given  its  more  advanced  form,  as  it  existed  in  France. 
The  king  assumed  the  title  of  lord  paramount,  to  whom  all 
must  do  homage  and  swear  ifealty  for  their  lands.    The  whole 
claim  of  authority  was  based  on  a  theory  of  ownership  of 


THE  BRITISH  EMPIRE  675 

land.  The  great  vassals  held  title  to  their  estates  under  the 
king  and  parcelled  them  among  their  chief  retainers.  The 
men  who  actually  tilled  the  soil  became  menials,  whose  rights 
were  regarded  as  of  very  slight  concern.  In  the  fourth  year 
of  his  reign  he  published  a  code  of  laws,  which  in  main  were 
the  same  as  those  of  his  Saxon  predecessors.  He  however, 
took  care  to  protect  his  Norman  followers  by  requiring  that 
the  hundred,  in  which  a  Frenchman  was  killed,  must  produce 
his  murderer  within  a  week  or  pay  a  penalty  of  forty-six 
marks.  In  1085,  when  threatened  with  an  invasion  by  the 
Danes,  William  brought  over  mercenary  troops  from  the 
continent,  levied  a  land  tax  and  laid  waste  the  coast  where  the 
enemy  would  be  likely  to  land,  so  as  to  deprive  them  of  sub- 
sistence when  they  came.  William  was  superior  to  his  Saxon 
predecessors  in  that  he  took  a  more  general  view  of  his 
kingdom's  situation,  but  in  its  defense  the  preservation  of  his 
own  power  and  position  was  the  main  object.  He  did  not 
hesitate  to  sacrifice  the  people  in  advance  of  the  time  of  need. 
His  capacity  for  gathering  information  by  systematic  methods 
was  most  strikingly  exhibited  by  the  great  survey  of  the  king- 
dom, compiled  in  Domesday  book.  This  was  no  less  than  a 
great  census  and  assessment  roll  of  the  country.  Commis- 
sioners were  sent  into  each  shire,  who  made  a  list  of  all  the 
lands,  with.the  names  of  the  owners  in  the  time  of  Edward  and 
at  that  time,  the  character  of  the  tenure  by  which  they  held, 
whether  by  boc  or  otherwise,  the  conditions  to  which  they 
were  subject,  and  the  value  in  the  time  of  Edward  and  at  the 
time  of  the  survey.  In  order  to  ascertain  these  facts  they  were 
directed  to  go  into  each  hundred  and  take  the  evidence  of 
sheriffs,  landowners,  priests,  bailiffs,  and  six  selected  villeins 
from  each  township.  They  were  required  to  ascertain  the 
extent  of  each  holding,  measured  in  the  old  way  by  hides,  and 
also  by  the  standard  of  a  fair  year's  work  by  an  eight  ox  plow 
team,  rated  at  about  one  hundred  and  twenty  acres,  with  de- 
tails as  to  the  population,  whether  free  or  slave,  the  character 
of  the  soil,  extent  of  meadows,  woods,  pastures,  etc.,  the 
buildings,  mills  and  other  improvements,  with  the  numbers  of 
•cattle,  pigs,  horses,  etc.     The  largest  cities  and  some  of  the 


(f](i  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

northern  counties  were  not  included.  This  was  a  remarkable 
example  for  that  age  of  that  fondness  for  figures  and  definite 
information,  which  has  since  been  so  characteristic  of  the 
British  nation.  It  was  William's  method  of  taking  an  invoice 
of  the  property  he  had  acquired  by  the  conquest.  His  next 
important  step  was  to  impress  the  fact  of  his  ownership  on  the 
people  by  requiring  all  landowners,  holding  ajiy  considerable 
tracts,  to  assemble  on  the  plains  of  Salisbury,  pay  him  homage 
and  swear  allegiance.  In  this  he  overlapped  the  continental 
system  of  infeudation  and  required  homage  and  fealty  from 
those  holding  mediately  from  his  vassals,  as  well  as  directly 
from  himself.  Thus  the  feudatories  of  the  lords  were  re- 
quired to  do  homage  and  swear  fealty  to  the  king,  though  also 
bound  to  their  immediate  superiors.  This  was  contrary  to  the 
prevailing  system  both  in  England  and  on  the  continent,  by 
which  the  tenant  was  bound  to  the  king  only  through  his  im- 
mediate lord,  whom  he  could  not  desert  even  at  the  command 
of  the  king.  By  parcelling  out  the  lands  of  the  kingdom 
among  his  bloody  and  remorseless  followers  in  great  tracts,. 
William  completed  the  establishment  of  that  landed  aristoc- 
racy, which  was  the  source  of  so  much  pride,  arrogance, 
selfishness,  bloodshed  and  cruelty  through  succeeding  cen- 
turies. The  theory  was  simple  and  easily  taught  to  the  igno- 
rant multitude.  The  king  or  his  vassal  high  or  low  owned 
the  soil,  and  whoever  else  dwelt  on  it  must  do  so  on  such  terms 
as  the  owner  imposed.  The  personal  freedom  of  the  poor 
landless  man  was  not  denied,  but  in  order  to  have  an  abiding 
place  he  must  have  a  lord  and  serve  him.  William  loved  to 
hunt,  and  in  order  to  provide  a  hunting  ground  and  make 
what  was  termed  the  New  Forest,  he  drove  the  people  off  some 
17,000  acres  of  tillable  land  and  converted  it  into  a  wilderness 
to  breed  game,  which  he  protected  from  others  by  savage  laws. 
"Whoso  slew  hart  or  hind  had  to  be  blinded."  This  was  but 
another  exhibition  of  his  extreme  selfishness  and  utter  dis- 
regard for  the  rights  of  the  humble  people. 

The  leading  incidents  of  the  feudal  system  were,  on  the 
part  of  the  lord  an  obligation,  kept  or  not  according  to  cir- 
cumstances, to  protect  the  tenant  in  his  possessions;  on  the 


THE  BRITISH  EMPIRE  (yj-j 

part  of  the  vassal  to  render  military  service  and  ifurnish  one 
mounted  and  equipped  soldier  for  a  given  quantity  of  land, 
bound  to  forty  days'  service  in  each  year;  to  aid  his  lord  by 
a  payment  of  money  when  his  eldest  son  became  a  knight,  or 
his  eldest  daughter  was  married,  or  to  pay  his  ransom  in  case 
of  his  captivity;  to  give  a  relief  on  the  transmission  of  an 
estate  from  ancestor  to  heir,  which  at  first  was  a  sum  fixed  at 
his  pleasure  by  the  lord  on  taking  possession  by  the  heir,  but 
later  was  fixed  at  one  year's  profits.  The  lord  was  the  guardian 
of  the  lands  of  the  heirs  of  his  vassals  during  their  minority; 
as  such  he  took  the  products  of  them,  and  rendered  no  account 
of  what  he  received.  When  a  tenant  in  chivalry,  deemed  the 
most  honorable  tenure,  came  of  age,  to  get  possession  of  the 
lands  of  his  ancestor  he  must  sue  out  livery  of  seizin  and  pay 
a  further  half  year's  profits.  Wardship  also  gave  the  lord 
power  to  dispose  in  marriage  of  the  ward,  male  or  female,  on 
pain  of  heavy  forfeiture  for  refusal. '  Forfeiture  of  estate  for 
treason  or  felony  and  escheats  on  failure  of  heirs  in  the  desig- 
nated line,  afforded  pretexts,' — often  taken  advantage  of, — 
for  the  lord  to  dispossess  a  tenant  and  take  the  lands  to 
himself.  One  of  the  innovations  introduced  by  William  was 
the  division  of  the  ecclesiastical  from  the  civil  courts,  and 
another  was  the  decision  of  causes  by  wager  of  battle.  In  the 
exercise  of  their  jurisdiction  the  bishops  assumed  the  right  to 
determine  all  causes  affecting  their  own  interests  and  to  decide 
them  in  accordance  with  the  Canon  Law.  Thus,  in  building 
up  their  power,  the  clergy  were  allowed  to  enforce  their  will 
through  the  forms  of  judicial  proceedings.  The  High  Court 
of  Justiciary,  the  original  court  of  Kings  Bench,  was  estab- 
lished by  William,  and  he  also  established  a  chancery  and 
treasury,  the  Chancellor  keeping  the  king's  seal,  conducting 
his  correspondence  and  acting  as  his  general  secretary. 
Though  William  courted  and  obtained  the  sanction  of  the 
church  for  his  deeds,  he  did  not  concede  papal  supremacy  in 
England,  but  retained  authority  over  ecclesiastical  affairs  in 
his  dominions  and  laid  down  as  rules,  that  no  Pope  should  be 
recognized  without  his  leave,  no  papal  letters  should  be  de- 
livered till  shown  to  him,  nothing  should  be  done  in  Synod  or 


678  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Council  except  by  his  permission,  and  no  tenant  in  chief  should 
be  excommunicated  or  censured,  except  by  his  orders.  The 
rapid  progress  made  in  castle  building  is  shown  by  the  fact 
that  forty-nine  castles  are  named  in  Domesday.  A  conspicu- 
ous one  was  the  Tower  of  London.  Many  cathedrals  were 
also  erected.  William  gave  to  England  a  system,  destined  to 
endure  in  most  of  its  chief  points  for  many  centuries.  He 
died  in  1087  and  was  succeeded  in  Normandy  by  his  eldest 
son  Duke  Robert  and  on  the  throne  of  England  by  his  second 
son  William  Rufus,  who  ruled  till  11 00,  when  he  died  from 
an  arrow  shot  received  while  hunting  in  the  New  Forest  made 
by  his  father.  In  his  time  there  were  many  uprisings  against 
his  authority  and  private  wars  among  his  great  vassals.  Duke 
Robert  joined  the  first  crusade  and  mortgaged  his  duchy  to 
William  for  money  to  defray  his  expenses,  thus  for  the  time 
uniting  England  and  Normandy  under  one  head.  He  was 
succeeded  by  his  younger  brother  Henry,  who  followed  his 
coronation  by  publishing  a  charter,  in  which  he  recited  that  he 
had  been  crowned  by  the  common  council  of  the  Barons  of 
the  Realm.  This  was  a  marked  departure  in  name  from  that 
of  an  assembly  of  the  freemen,  though  not  essentially  different 
in  composition  from  the  witan  of  the  later  Saxons.  He 
promised  to  abstain  from  unjust  exactions  and  liberated  the 
church,  agreeing  to  neither  sell  nor  farm  out  vacant  benefices 
nor  to  seize  vacant  sees,  and  to  refrain  from  divers  other  ob- 
noxious practices.  Though  this  charter  made  no  effectual 
provision  for  its  enforcement  against  the  king,  it  is  a  notable 
step  in  the  direction  of  government  in  accordance  with  fixed 
principle.  A  special  copy  of  it,  addressed  to  the  sheriff,  was 
sent  down  to  each  county.  The  basic  system,  which  denied 
the  multitude  all  right  to  the  face  of  the  earth,  had  been  gotten 
well  under  way  by  the  Saxons  and  was  fully  established  by 
the  two  Williams.  It  was  not  devised  to  do  justice  among 
men,  but  was  expressly  designed  to  enable  the  organized  few 
to  rule  the  many  and  extort  from  them  the  fruits  of  their 
toil  without  return.  The  charter  of  Henry  makes  no  attack 
on  the  principle,  but  promises  slight  relief  from  some  of  the 
abuses  which  excited  discontent  among  the  barons  and  clergy. 


THE  BRITISH  EMPIRE  679 

Henry  was  more  politic  and  less  bloody  than  his  father  or 
brother,  and  under  him  there  was  some  progress  in  the  or- 
ganization of  the  state,  especially  in  the  development  of  the 
judicial  and  financial  systems.  From  his  time  the  king's 
justices  began  to  go  down  and  sit  in  the  county  courts  with 
the  sheriffs,  and  the  King's  Court  {Curia  Regis),  took  juris- 
diction of  causes  relating  to  lands  between  tenants  holding 
directly  under  the  king.  From  his  reign  dates  the  use  of  the 
term  exchequer  to  designate  the  royal  treasury  and  accounts 
were  regularly  kept,  though  in  a  most  primitive  way,  with  the 
sheriffs  whose  duty  it  was  to  collect  and  semiannually  return 
the  taxes  from  the  counties. 

The  lack  of  moral  foundation  to  support  the  feudal  system 
was  well  exhibited  by  the  period  of  anarchy  during  which 
King  Stephen  fought  to  maintain  his  authority.  He  was  not 
heir  to  the  throne  according  to  any  accepted  doctrine  of  in- 
heritance, nor  was  he  elected  by  any  representative  body.  The 
Londoners,  a  few  nobles  and  an  archbishop,  with  some  other 
churchmen,  gave  him  their  support,  and  he  was  crowned  with 
the  usual  rites.  Matilda,  the  daughter  of  Henry,  claimed  the 
crown,  and  the  nobles  supported  either  party,  according  to 
their  interests  or  inclinations.  Feudal  oaths  were  easily 
broken.  Pride,  greed  and  mere  love  of  strife  caused  the 
barons  to  war  with  each  other,  with  #he  king  or  any  other 
opposing  force  that  was  at  hand.  Among  the  Barons  no 
calling  was  deemed  honorable  but  war.  All  useful  labor  and 
all  iforms  of  true  service  for  others  were  deemed  contemptible, 
and  the  business  of  killing  human  beings  in  fight,  destroying 
property  and  spreading  desolation,  was  alone  considered  hon- 
orable. The  rapid  construction  of  strong  walled  castles,  from 
which  the  lord  and  his  murderous  band  sallied  and  into  which 
they  retired,  tended  greatly  to  promote  the  personal  warfare 
of  the  age.  The  poor  tillers  of  the  soil,  who  dwelt  without 
castle  walls,  were  all  the  time  exposed  to  destruction  at  the 
hands  of  the  enemies  of  their  lord,  and  were  little  better  off 
when  left  merely  to  his  mercy.  The  disorders  of  the  times 
tended  to  the  growth  of  the  influence  of  the  church,  and 
Stephen  by  appealing  to  the  Pope  weakened  the  authority  of 


68o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  Crown.  The  clergy  came  to  deny  all  jurisdiction  over 
themselves  and  their  land  by  the  civil  pov^er  and  to  insist  on 
their  right  to  finally  determine  all  matters  affecting  their 
interests.  Though  many  bishops  and  other  high  church  dig- 
nitaries maintained  their  power  by  armed  forces  and  fought 
at  the  head  of  their  retainers  like  the  temporal  barons,  they 
were  generally  more  inclined  to  use  the  peaceful  weapons  of 
judicial  and  papal  decrees,  enforced  through  the  superstitious 
fears  of  the  people.  There  was  less  danger  and  more  certainty 
of  results  when  priests  passed  on  the  merits  of  the  claims  of 
priests. 

Stephen  was  followed  by  Henry  II,  whose  right  to  the 
throne  was  universally  recognized.  He  was  a  prince  of  far 
greater  capacity  and  more  inclined  to  gain  his  ends  by  pacific 
means.  So  great  had  been  the  encroachment  of  the  ecclesiasti- 
cal on  the  temporal  power,  that  the  greatest  task  and  most 
prominent  purpose  of  Henry's  reign  was  to  recover  the  power 
and  influence  which  the  clergy  had  engrossed.  He  fully  ai> 
preciated  the  necessity  of  organization  and  of  the  support  of 
the  leading  spirits  of  his  kingdom  in  his  contest  with  the 
church.  He  therefore  called  a  great  council  of  the  nobility 
and  prelates  at  Clarendon  to  settle  the  boundaries  between  the 
authority  of  the  king  and  that  of  the  church.  This  appears  to 
have  been  the  first  greSt  parliament  under  the  Normans.  The 
barons  naturally  sided  with  the  king,  and  with  their  help  he 
overawed  the  bishops  and  enacted  the  Constitution  of  Claren- 
don, which  declared  that  all  suits  concerning  advowsons  and 
presentations  of  churches  should  be  determined  in  the  civil 
courts;  that  churches  belonging  to  the  king's  fee  should  not 
be  granted  in  perpetuity  without  his  consent;  that  clerks  ac- 
cused of  crime  should  be  tried  in  the  civil  courts;  that  the 
laity  should  not  be  accused  in  spiritual  courts  except  by  re- 
putable witnesses;  that  all  appeals  in  spiritual  causes  should 
be  from  the  archdeacon  to  the  bishop,  from  the  bishop  to  the 
primate  and  from  him  to  the  king,  and  should  go  no  farther 
without  the  king's  consent ;  that  archbishops,  bishops  and  other 
dignitaries  should  be  regarded  as  barons  of  the  realm  and  en- 
titled to  the  privileges  and  subject  to  the  burdens  incident  to 


THE  BRITISH  EMPIRE  68i 

that  rank;  that  the  clergy  should  no  longer  pretend  to  the 
right  of  enforcing  payment  of  debts  contracted  by  oaths  or 
promise,  but  such  suits  should  be  left  to  the  civil  courts;  and 
that  the  sons  of  villeins  should  not  be  ordained  as  clerks  with- 
out the  consent  of  their  lord.  These  and  other  provisions 
tended  greatly  to  curb  the  overgrown  pretensions  of  the  church 
in  matters  of  purely  temporal  concern,  but  the  provision  last 
noted  clearly  shows,  that  it  was  not  for  the  purpose  of  se- 
curing greater  freedom  for  the  lower  ranks  of  society,  but  to 
strengthen  the  positions  of  the  king  and  barons.  These  arti- 
cles, reduced  to  writing  and  sealed  by  barons  and  bishops, 
are  a  most  notable  instance  of  an  early  attempt  to  set  bounds 
to  the  ruling  power.  Though  leveled  against  the  pretensions 
of  the  clergy,  it  was  an  instance  of  opposing  the  kingly  force 
to  the  clerical.  The  Constitution  of  Clarendon  dealt  with 
the  opposing  forces  of  temporal  and  spiritual  power.  By  the 
adoption  of  this  constitution  Henry  did  not  by  any  means 
settle  the  controversy,  but  his  whole  reign  was  a  continued 
struggle  against  the  Papal  power,  of  -which  Thomas  a  Becket, 
Archbishop  of  Canterbury,  stood  as  a  most  renowned  cham- 
pion. To  enforce  his  power  Henry  issued  orders  to  all  his 
judicial  ofhcers  prohibiting  all  appeals  to  the  archbishop  or 
pope,  or  the  receipt  of  any  mandate  from  them;  declaring  it 
treason  to  bring  from  either  of  them  an  interdict  into  the  king- 
dom, under  penalty,  if  a  secular  clergyman,  of  loss  of  eyes  and 
castration,  if  a  regular  of  amputation  of  the  feet,  and  if  a 
layman,  of  death.  Henry  found  the  struggle  a  difficult  one, 
and  on  several  occasions  was  forced  to  humble  himself  and 
make  terms  with  his  adversary,  yet  he  persisted  in  his  ad- 
herence to  the  principles  of  this  constitution.  In  his  reign 
there  was  a  marked  advance  in  the  exercise  of  judicial  power 
in  lieu  of  private  warfare.  He  divided  the  kingdom  into  four 
judicial  divisions  with  justices  in  each,  who  held  courts  in  each 
of  the  counties.  A  strange  phase  of  the  criminal  law  of  the 
time  was,  that  a  clergyman,  guilty  even  of  murder,  could  be 
punished  by  degradation  only,  if  he  were  murdered  the  slayer 
would  be  subject  only  to  censure  and  excommunication,  and 


682  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  crime  might  be  atoned  for  by  penances  and  submission. 
The  murderers  of  so  distinguished  a  prelate  as  Becket,  on 
submission  to  the  penances  imposed  by  the  Pope,  were  not 
only  left  with  their  lives  but  also  with  their  titles  and  estates. 
Henry  and  his  council  promulgated  a  law,  that  the  goods  of 
a  vassal  should  not  be  seized  for  the  debt  of  his  lord  unless 
the  vassal  was  surety  for  the  debt,  and  that  the  rents  due 
from  the  vassal  should  be  paid  to  the  creditors  of  the  lord  in- 
stead of  to  the  lord  himself.  The  enactment  of  such  a  law 
indicates  the  prevalence  of  the  condemned  practice  and  a 
growing  sense  of  the  rights  of  vassals. 

Henry  invaded  Ireland  and  overran  it  with  little  opposition, 
but  the  dominion  he  established  was  not  enduring.  He  also 
compelled  the  Scotch  to  do  him  homage.  His  rule  was  thus 
extended  over  all  the  British  Islands,  as  well  as  over  Nor- 
mandy, but  it  was  merely  the  rule  of  a  feudal  monarch,  de- 
pendent on  individual  capacity  for  its  maintenance  and  doomed 
to  fall  whenever  passed  into  weak  hands. 

The  reign  of  Richard,*  1189  to  1199,  exhibits  in  the  strong- 
est light  the  barbarity,  the  gross  superstition  and  bigotry,  of 
the  times.  The  crusade  to  free  the  Holy  Land  from  the 
dominion  of  the  Infidels  was  a  war  waged  by  the  fanatical 
Christians  of  the  west  against  the  far  more  enlightened,  cul- 
tured and  humane  Mohammedans  of  the  East.  Richard  taxed 
his  kingdom  to  the  utmost  and  sold  great  estates  in  the  most 
reckless  manner  to  raise  money  to  defray  the  expenses  of  his 
army  to  invade  Palestine.  It  was  the  first  distant  expedition 
undertaken  by  a  British  army  and  was  productive  of  some 
good  in  an  educational  way,  though  based  on  no  moral  pur- 
pose. A  superstitious  veneration  for  a  particular  spot  of 
earth  and  a  hatred  ifor  the  followers  of  a  different  priesthood 
furnished  the  pretext  for  it.  Nothing  could  have  been  more 
romantic  or  foolhardy  than  Richard's  career  in  the  East,  nor 
much  more  disastrous  to  his  followers,  most  of  whom  per- 
ished either  on  the  march,  in  camp  or  on  the  battlefield. 
Richard's  detention  in  captivity  by  the  German  Emperor  and 
Duke  of  Austria,  Christian  princes,  is  but  one  of  many  ex- 
hibitions of  the  prevailing  lack  of  real  Christian  fellowship 


THE  BRITISH  EMPIRE  683 

among  the  crusaders ;  but  his  own  act  in  causing  the  slaughter 
of  five  thousand  prisoners,  taken  at  Acre,  is  a  far  more  strik- 
ing proof  of  the  utter  barbarity  of  the  professed  Christians. 
While  Richard  was  leading  his  vassals  to  destruction  in  the 
East,  his  kingdom  was  exposed  to  all  the  disorders  incident  to 
the  feudal  system  when  free  from  the  restraint  of  a  master  like 
Henry  II.  Normandy  and  England  both  suffered  from  the 
jealousies,  hatreds  and  ambitions  of  the  Barons,  and  the  in- 
efficiency of  the  clerical  regents,  whom  he  left  as  guardians 
of  the  realm.  Prince  John  after  putting  an  end  to  their  rule 
did  no  better.  Richard  lost  his  life  by  refusing  to  accept  the 
surrender  of  the  garrison  of  the  castle  of  Chalus  near  Limoges, 
preferring  to  take  it  and  hang  its  defenders  for  presuming  to 
resist  him.  He  was  struck  in  the  shoulder  by  an  arrow,  caus- 
ing a  wound  from  which  gangrene  ensued  and  occasioned  his 
death.  The  peculiarities  of  his  temper  are  well  illustrated  by 
his  treatment  of  the  garrison,  all  of  whom  were  hanged  ex- 
cept the  archer  who  shot  him,  whom  he  pardoned;  but  this 
did  the  archer  no  good  for  his  followers  flayed  and  hanged 
him. 

Though  Arthur,  Duke  of  Brittany  and  son  of  Geoffrey  the 
eldest  brother  of  Richard,  was  in  the  regular  line  to  inherit 
the  throne,  John,  the  younger  brother,  was  named  his  suc- 
cessor by  Richard  in  his  will,  and  to  make  sure  of  his  authority 
murdered  the  young  Arthur.  Such  exhibitions  of  selfishness, 
heartless  criminality,  and  utter  disregard  of  the  ties  of  blood, 
have  alas  been  all  too  common  in  princely  families.  The 
struggle  between  the  Pope  and  the  King  for  temporal  power 
went  on  during  John's  reign  as  in  that  of  his  father,  but  with 
far  different  results.  John  was  neither  politic  nor  capable  of 
gaining  his  ends  by  force.  He  was  cruel,  deceitful,  fickle,  a 
tyrant  by  nature,  without  ability  to  attach  any  class  of  people 
to  his  interests,  except  through  payments  or  favors.  He  there- 
fore had  to  struggle  against  his  barons,  and  against  the 
church.  At  last  he  allied  himself  with  the  Pope  and  even 
yielded  so, far  to  papal  pretensions  as  to  agree  to  hold  Eng- 
land as  the  feudatory  of  the  church  of  Rome  and  to  pay  a 
tribute  annually  of  1,000  marks.     His  abject  submission  to 


684  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Rome,  in  such  marked  contrast  with  the  stand  taken  by  Henry, 
was  utterly  distasteful  to  the  barons,  with  whom  he  was  per- 
petually in  conflict;  nor  was  his  conduct  toward  the  clergy 
such  as  to  hold  their  good  will,  but  by  his  oppression  of  all 
classes  of  men  and  his  gross  immorality  and  cruelty  he  aroused 
the  hostility  of  the  spiritual  as  well  as  the  temporal  lords. 
The  archbishop  of  Canterbury  took  the  lead  in  organizing  the 
bishops  and  barons  to  curb  him.  At  a  meeting  convened  in 
London  they  demanded  of  him  a  renewal  of  the  charter  of 
Henry  and  the  laws  of  Edward.  He  temporized  and  took 
time  for  reply,  during  which  he  called  in  the  aid  of  the  Pope, 
but  in  spite  of  all  his  efforts  the  coalition  grew  in  strength, 
and  an  assembly  of  2,000  knights  with  their  followers  forced 
him  at  Runnemede  to  sign  the  Great  Charter,  so  much  regarded 
through  later  times.  With  characteristic  perfidy  on  his  part 
and  assumption  on  the  part  of  the  Pope,  he  procured  a  Bull 
annulling  the  charter  and  prohibiting  the  barons  from  exact- 
ing the  observance  of  it.  John  thereupon  repudiated  it  and, 
having  gathered  a  force  of  foreign  mercenaries,  he  waged 
war  on  the  disbanded  and  disorganized  barons,  laid  waste 
their  estates  and  butchered  their  poor  vassals.  In  the  ninth 
year  of  his  reign  John  granted  the  city  of  London  an  im- 
portant charter,  giving  it  the  right  of  electing  annually  a  mayor 
and  common  councilmen  and  to  elect  and  remove  its  sheriff  at 
pleasure.  Thus  the  disquiet  reign  of  a  vicious  ruler  con- 
tributed materially  to  the  foundation  of  a  better  ordered  so- 
ciety in  later  times,  though  the  fruit  was  exceedingly  slow  in 
ripening. 

The  far-reaching  value  of  the  Great  Charter  does  not  lie  in 
any  purpose  to  relieve  the  lower  orders  from  the  tyranny  of 
the  barons  and  priests,  nor  of  the  king  himself;  but  in  the 
fact  that  a  written  chart  was  made,  which  set  bounds  to  the 
authority  of  the  king  and  his  officers,  and  also  to  that  of  the 
barons,  and  marked  out  a  method  of  enforcement  against  the 
king.  The  feudal  system  with  its  unjust  basis  and  its  vicious 
tendencies  was  left  undisturbed,  but  abuses  beyond  certain 
expressed  limits  were  prohibited.  A  full  copy  of  this  charter 
is  given  in  the  Appendix. 


THE  BRITISH  EMPIRE  685 

The  importance  of  this  great  charter  lies  not  so  much  in  the 
intrinsic  merits  of  its  provisions,  as  in  the  pertinacity  with 
which  succeeding  generations  have  insisted  on  the  observance 
of  such  as  tended  to  the  protection  of  the  subjects  against  the 
unwarranted  demands  and  acts  of  the  king  and  nobles.  The 
Charter  accepted  an  organization  of  society  which  denied 
justice  and  invited  private  wars  and  turmoil.  A  favored  few 
were  in  possession  of  most  of  the  lands  of  the  kingdom.  They 
and  their  ancestors  for  generations  had  been  accustomed  to 
extort  from  their  tenants  a  large  share  of  the  products  of  the 
soil,  for  which  nothing  was  given  in  return.  This  system  had 
continued  so  long  that  it  was  accepted  without  question  in  its 
main  essentials.  The  transmission  of  the  privileges  and 
powers  of  the  great  landlords  from  father  to  son  by  inheri- 
tance was  accepted  as  an  established  law,  and  the  great  multi- 
tude held  in  servitude  to  the  barons  accepted  their  lot  as  that 
to  which  they  were  born,  with  no  suspicion  that  the  general 
system  of  land  tenures  was  responsible  for  the  grossest  in- 
justice to  them.  The  lord  was  born  to  pride,  arrogance,  dis- 
dain of  all  useful  employments,  love  of  war,  and  in  peace  of 
the  savage  sport  of  the  hunter,  drunkenness  and  debauchery. 
The  poor  villein  was  born  to  a  narrow  life  of  ignorance  and 
servitude,  from  which  only  one  of  remarkable  spirit  and 
capacity  could  raise  himself.  The  Great  Charter,  in  framing 
which  the  hands  of  the  clergy  evidently  performed  a  great 
part,  accepts  all  those  forms  of  injustice,  which  were  fortified 
by  long  established,  settled  rules,  with  which  people  were 
familiar  and  in  which  they  acquiesced,  and  made  provisions 
against  the  exercise  of  exceptional  and  arbitrary  powers  at 
the  caprice  of  the  king  or  of  the  barons.  It  did  not  seek  to 
better  the  condition  of  slaves  or  villeins  in  any  marked  degree. 
It  is  notable  that  thus  early  a  provision  should  be  made  in 
favor  of  the  freedom  of  trade,  a  policy  which  in  modern  times 
has  contributed  so  bountifully  to  the  prosperity  of  the  people. 
The  mere  circumstance  of  granting  a  charter  in  that  age  was 
not  at  all  remarkable:  Prior  kings  of  England  had  granted, 
them,  as  did  also  John's  successors.  But  such  charters  were 
not  peculiar  to  England.    The  German  emperors  granted  them 


686  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  great  numbers  to  their  dependents  and  often  violated  them 
without  compunction.  This  charter  accorded  with  the  spirit 
of  the  times  in  main,  yet  breathes  a  spirit  of  justice  in  ad- 
vance of  them.  Subsequent  generations  caught  the  spirit  and 
fought  for  an  enlarged  application  of  it.  The  great  import- 
ance of  the  Charter  lies  in  the  fact  that  it  became  the  point 
around  which  the  forces  contending  for  human  rights  rallied, 
and  the  seed  from  which  popular  rights  in  England  have  been 
propagated. 

Henry  III  under  the  guardianship  of  the  able  Earl  of  Pem- 
broke granted  a  new  charter  in  121 6  containing  forty-two 
sections,  mostly  copied  from  that  of  John.  In  121 7  he  fol- 
lowed it  with  another  in  forty-seven  sections  which  he  re- 
newed in  substance  in  1224.  The  main  difference  between  the 
charters  of  Henry  and  that  of  John  is  in  the  omission  of  the 
provision  requiring  aids  and  scutages  to  be  granted  by  the 
barons.  The  provisions  of  the  latter  charters  are  not  of  so 
much  importance,  for  the  reason  that  in  after  times  the  Great 
Charter  of  John  was  appealed  to  as  the  authoritative  expres- 
sion of  the  limitations  of  the  king's  power.  At  the  time  of 
granting  his  second  charter  Henry  also  granted  another,  called 
the  Forest  Charter,  regulating  the  government  of  the  forests 
and  providing  for  the  restoration  to  their  owners  of  lands  un- 
justly seized  by  his  father,  uncle  Richard  and  grandfather,  to 
make  iforests.  This  charter,  though  deemed  of  much  import- 
ance at  the  time,  dealt  mainly  with  conditions  peculiar  to  the 
time  and  has  left  little  if  any  impression  on  modern  institu- 
tions. Henry  began  his  reign  by  swearing  fealty  to  the  Pope 
as  his  father  had  done,  and  much  of  the  trouble  of  his  reign 
was  due  to  the  gross  venality  of  the  Pope  and  clergy.  The 
thirst  for  power,  which  had  been  so  strong,  had  changed  into 
a  desire  for  wealth  and  luxury,  and  the  demands  for  more 
money  grew  and  could  never  be  fully  satisfied.  This  reign  is 
especially  notable  for  its  parliament.  At  first,  as  in  preceding 
reigns,  only  such  of  the  barons  and  prelates  as  the  King  saw 
•fit  to  summon  were  consulted,  but  in  Henry's  time  these  ses- 
sions were  more  frequent  and  more  numerously  attended.  In 
1258  Henry  summoned  a  Parliament  for  the  purpose  of  rais- 


THE  BRITISH  EMPIRE  687 

ing  funds  for  his  project  of  conquering  Sicily  for  his  second 
son  Edmond.  The  barons  came  in  arms,  backed  by  their  vas- 
sals, and  proceeded  to  name  twenty-four  barons  with  authority 
to  reform  the  state.  The  king  was  forced  to  submit  to  their 
authority.  At  the  head  of  the  council  thus  formed  was  the 
Earl  of  Leicester,  an  able  man.  This  council  at  once  took 
charge  of  the  administration  of  the  government.  They  re- 
moved the  chief  justice,  chancellor  and  treasurer,  and  ap- 
pointed others  of  their  own  selection.  To  -further  extend 
their  power  they  caused  the  barons  to  appoint,  as  a  commit- 
tee of  the  Parliament,  twelve  persons,  to  possess  the  authority 
of  the  whole  Parliament  when  not  in  session.  In  this  manner 
the  power  of  the  king  was  reduced  to  a  mere  shadow,  and  the 
great  barons  assumed  substantially  the  whole  political  power 
of  the  state.  But  the  spirit  of  the  times  and  the  lack  of  any 
moral  bond  holding  the  barons  together  or  checking  their 
excesses  soon  enabled  the  King  to  recover  his  ground.  The 
Pope,  in  accordance  with  the  established  policy  at  Rome,  ab- 
solved Henry  from  the  oath  he  had  been  forced  to  take  to 
support  the  new  constitution,  and  the  King  thereupon  issued 
a  proclamation  resuming  authority  and  followed  it  with  ap- 
pointments of  new  officials  in  all  positions  of  importance.  He 
summoned  a  parliament  which  ratified  his  acts,  but  the  strug- 
gle did  not  end  here.  Leicester  and  his  party  rose  again  in 
opposition  and,  to  avoid  bloodshed,  the  singular  expedient  was 
adopted  of  submitting  the  matters  in  dispute  between  the  king 
and  these  barons  to  the  arbitration  of  Louis,  King  of  France, 
distinguished  for  his  virtue  as  well  as  piety.  King  Louis  quite 
naturally  decided  in  favor  of  King  Henry  and,  with  the  same 
want  of  faith  that  the  King  had  exhibited,  the  barons  refused 
to  abide  by  the  award.  Civil  war  ensued,  in  which  the  barons 
were  successful  and  the  King  fell  into  their  power.  Leicester 
was  again  at  the  head  of  the  government.  In  1265  he  con- 
vened a  new  parliament,  to  which  he  summoned,  not  only 
such  of  the  barons  and  ecclesiastics  as  were  of  his  party  and 
two  knights  from  each  shire,  but  also  deputies  from  the  bor- 
oughs. This  was  the  birth  of  the  House  of  Commons,  being 
the  first  recorded  instance  of  any  representation  from  the  bor- 


688  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

oughs.  The  number  of  the  barons  in  the  forty-seventh  year 
of  Henry's  reign  is  given  roundly  at  one  hundred  and  fifty 
temporal  and  fifty  spiritual.  The  long  reign  of  Henry,  from 
12 1 6  to  1272,  v^as  a  period  of  great  turbulence,  exhibiting  in 
marked  degree  the  evils  of  feudalism.  Yet  this  period  of 
turbulence  marks  the  origin  of  that  system  v^hich  has  ruled 
England  through  so  many  succeeding  centuries,  and  under 
which  its  power  and  prosperity  have  expanded  so  greatly. 
This  reign  is  notable  as  being  that  from  which  the  preserved 
statutory  law,  now  so  voluminous,  starts.  The  statute  of 
Merton,  ordained  in  1235  by  the  king  with  the  approbation  of 
the  lords  spiritual  and  temporal,  treats  of  remedies  for  widows 
deprived  of  their  dower,  of  disseisins,  tenures  of  woods, 
wastes  and  pastures,  usury,  wardships  and  marriages,  Hmita- 
tions  of  writs,  and  allows  attorneys  to  appear  in  suits.  In 
1266  a  statute  was  made  regulating  the  price  of  bread  and  ale 
according  to  the  price  of  corn.  Several  statutes  were  also 
enacted  regulating  process  and  procedure  in  the  courts,  one 
of  which,  relating  to  leap  year,  is  in  form  an  order  addressed 
by  the  King  to  "his  Justices  of  the  Bench."  The  statute  of 
Marlbridge  1267  relates  mostly  to  subjects  connected  with 
feudal  tenure  and  to  writs  for  relief  in  the  courts,  the  names 
of  many  of  which  are  familiar  to  lawyers  versed  in  the  com- 
mon law.  The  summary  method  of  collecting  the  landlo^'s 
rent  by  distress  without  legal  process  is  treated  of.  Dower, 
darrein  presentment,  quare  impedit,  mort  d'ancestor,  replevin, 
waste,  voucher  to  warranty,  entry  sur  disseisin  in  the  post,  and 
other  kindred  writs  and  rights  are  regulated;  showing  that 
even  in  those  turbulent  times  people  looked  to  courts  and  law 
for  escape  from  robbery  and  violence.  These  statutes  were 
all  in  Latin,  while  some  of  those  of  the  succeeding  reign  of 
Edward  I  were  in  Norman  French  and  others  in  Latin. 

At  the  time  of  the  death  of  Henry  Prince  Edward  was 
crusading  in  the  Holy  Land.  On  his  return  he  dallied  nearly 
a  year  in  France.  Being  challenged  to  a  tournament  at 
Chalons  in  which  he  was  successful,  he  was  forced  to  follow 
the  mock  battle  with  a  real  one,  in  which  many  knights  were 
slain.     At  Paris,  Edward  did  homage  to  the  French  King  for 


THE  BRITISH  EMPIRE  689 

the  lands  he  held  in  France  and  then  returned  to  England  to 
be  crowned.  To  repress  the  robberies  and  murders  which 
were  so  common  throughout  the  country,  he  appointed  a  com- 
mission empowered  to  deal  summarily  with  such  offenders, 
who  zealously  condemned  suspects  and  confiscated  their  es- 
tates, thereby  greatly  adding  to  the  King's  revenues.  Some 
persons  were  guilty  of  debasing  the  coin  of  the  realm  and, 
as  Jews  were  smart  and  hated  by  the  multitude,  he  caused  two 
hundred  and  eighty  of  them  to  be  hanged  in  London  at  one 
time  and  many  others  elsewhere  in  the  kingdom.  This  also 
added  to  the  king's  revenues,  and  probably  was  merely  a 
false  pretext  devised  as  a  justification  of  the  murder  and 
robbery  of  the  more  peaceful  and  thrifty  Jews.  This  cruel  act 
he  followed  with  the  confiscation  of  the  estates  of  all  Jews, 
except  enough  to  pay  their  transportation  out  of  the  kingdom, 
and  banishment  of  all  of  them  to  the  number  of  15,000.  Ed- 
ward was  thrifty.  He  obtained  from  his  parliament  a  grant 
of  one-fifteenth  of  all  chattels,  from  the  Pope  one-tenth  of  all 
ecclesiastical  revenues  for  three  years,  and  from  the  merchants 
half  a  mark  on  each  sack  of  wool  exported  and  a  mark  on  each 
three  hundred  skins.  He  made  close  inquiry  into  the  titles  of 
the  nobility  to  their  estates  and  caused  the  seizure  of  all  for 
which  he  could  find  a  pretext.  The  purpose  of  the  law  was  to 
support  the  power  and  pretensions  of  the  king,  the  nobility  and 
the  clergy.  The  judges  added  a  further  purpose,  to  enrich 
themselves,  and  their  corruption  was  most  gross.  Edward 
brought  them  to  trial  before  parliament  and  fined  them  so 
heavily  as  to  bring  him  a  large  sum  of  money.  Thus  he  suc- 
ceeded to  their  ill-gotten  wealth.  The  decay  of  the  feudal 
system  of  warfare  and  the  resort  to  paid  troops  made  it 
necessary  for  Edward  in  carrying  on  his  wars  with  the  Welsh, 
the  Scotch  and  the  French  to  call  on  his  subjects  for  frequent 
contributions.  To  obtain  these  he  found  it  necessary  to  call 
the  parliament  together  to  grant  him  funds.  Though  the 
Earl  of  Leicester  had  summoned  representatives  of  the  bor- 
oughs in  the  time  of  Henry  HI  the  practice  had  not  been  con- 
tinued, but  in  the  twenty-third  year  of  Edward's  reign  he 
summoned   representatives  of  all  the  boroughs,   and  this   is 


690  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

regarded  as  the  real  date  of  the  first  House  of  Commons.  In 
summoning  the  knights  and  barons  the  practice  grew  of  call- 
ing such  as  the  king  chose  and  of  having  the  knights  and 
barons  of  less  wealth  choose  representatives  from  each  county 
to  attend,  whose  expenses  were  borne  by  the  others.  Though 
these  representatives  came  from  the  more  humble  orders  of 
the  state,  they  there,  as  in  so  many  other  countries,  at  first 
gave  their  support  to  the  king  in  order  to  curb  the  power  and 
pretensions  of  the  great  barons.  At  first  the  commons  did 
not  assume  legislative  functions,  but  merely  assented  to  such 
demands  for  money  as  the  king  made  and  they  felt  unable  to 
resist.  They  might,  however,  petition  for  a  redress  of  griev- 
ances, and  the  king  might  grant  it  if  he  thought  best.  In 
Edward's  reign  the  barons  many  times  had  recourse  to  the 
Great  Charter  and  required  the  king  to  swear  to  observe  it. 
He  often  violated  it  and  repeated  many  times  his  promise  to 
be  governed  by  it.  All  classes  of  subjects  found  some  pro- 
visions in  it  tending  to  protect  them  and  insisted  on  the  ob- 
servance of  them.  The  power  of  the  clergy  began  to  decline, 
and  the  demands  of  the  king  for  money  steadily  increased. 
The  holdings  and  revenues  of  the  church  were  so  great,  that 
it  was  no  longer  the  policy  of  the  Crown  to  exempt  them  from 
taxation,  and  Edward  insisted  on  large  contributions  out  of 
ecclesiastical  revenues.  The  clergy  at  first  resisted,  but  the 
King  placed  them  outside  the  protection  of  the  law  by  depriv- 
ing them  of  any  remedy  in  the  courts  for  wrongs  done  them. 
As  plenty  of  his  subjects  were  ready  to  rob  them,  the  clergy 
soon  found  it  to  their  interest  to  yield.  He  also  placed  a 
check  on  future  acquisitions  of  land  by  the  clergy  by  a  statute 
of  mortmain.  In  his  reign  there  was  much  legislation,  and 
the  courts  grew  in  importance.  He  established  the  office  of 
justice  of  the  peace,  abolished  the  office  of  chief  justiciary  and 
divided  the  court  of  the  exchequer  into  four  with  coordinate 
jurisdiction.  The  perpetuation  of  the  power  of  the  nobility 
was  facilitated  by  the  statute  allowing  the  entailment  of  es- 
tates, so  that  the  owner  could  not  alienate  lands  away  from 
the  heir.  Edward  tried  to  break  away  from  the  annual  pay- 
ment of  i,ooo  marks  as  tribute  to  the  Pope,  but  was  unable  to 


THE  BRITISH  EMPIRE  691 

do  SO  and  preserve  the  support  of  the  head  of  the  church, 
which  he  often  found  needful.  England's  King  therefore 
continued  to  be  a  vassal  of  the  Pope,  but  the  clergy  felt  his 
heavy  hand  and  were  no  longer  able  to  oppose  his  will.  Com- 
merce grew  in  volume,  and  in  1296  the  society  called  ''Mer- 
chant adventurers"  was  formed  for  the  improvement  of 
woolen  manufactures  and  the  sale  of  cloth  abroad.  A  charter 
was  also  granted  for  the  protection  of  foreign  merchants,  but 
on  hard  terms.  In  his  wars  Edward  exhibited  great  vigor  and 
succeeded  in  the  permanent  subjugation  of  Wales  and  the 
temporary  conquest  of  Scotland.  The  reign  of  Edward  I  is 
chiefly  notable  for  the  great  development  of  the  system  of 
courts  and  rules  for  the  administration  of  the  law.  Nearly 
every  topic  affecting  proceedings  in  court  and  feudal  tenure 
of  land  received  attention.  Sheriffs  were  prohibited  from 
holding  prisoners  without  an  indictment  by  a  grand  jury  of 
twelve  or  more.  The  qualifications  of  jurors  for  the  trial 
of  causes  were  fixed  by  law,  and  the  number  to  be  summoned 
Hmited  to  twenty-four.  Terms  of  court  were  regulated, 
forms  of  writs  were  authorized  to  be  issued  out  of  chancery 
and  all  writs  were  required  to  be  under  the  great  seal.  The 
statute  of  ''quia  emptores"  provided  that  vendees  of  land 
should  hold  under  the  lord  paramount  as  the  vendor  had  held. 
The  period  of  savage  punishment  of  persons  charged  with 
crime  had  not  yet  arrived;  aside  from  an  act  making  rape 
punishable  with  death,  there  were  no  savage  penal  statutes. 
Most  of  the  acts  related  to  land  tenure  or  to  the  recovery  of 
it  or  of  rents  and  profits,  but  there  were  also  statutes  for  the 
collection  of  debts  and  of  damages  for  wrongs  suffered.  Most 
of  the  laws  are  models  of  clearness  and  brevity,  in  strong 
contrast  with  the  verbosity  of  later  periods.  Whatever  his 
faults  or  misdeeds,  Edward  is  well  entitled  to  the  name  of  the 
great  lawgiver,  for  from  his  reign  that  system  of  administer- 
ing the  law,  so  long  boasted  of  by  Englishmen,  took  definite 
form.  While  courts,  juries,  writs,  sheriffs,  bailiffs,  etc.  ex- 
isted and  had  been  used  long  prior  to  his  time,  he  more  than 
any  other  king,  gave  form  and  completeness  to  the  system, 
and,  though  there  was  little  justice,  there  was  much  of  statu- 


692  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tory  law  and  of  courts  and  officials  of  the  law  at  the  conclusion 
of  his  reign  in  1307. 

Edward  II  was  a  weak  prince.  The  system  of  parliament- 
ary rule  grew  in  strength  during  his  reign  and  that  peculiarly 
English  characteristic  of  demanding  established  rules  in  gov- 
ernment found  expression  in  acts  of  parliament,  many  of 
which  were  forced  on  the  king  against  his  will.  He  was  com- 
pelled to  give  up  his  favorite,  Gavaston,  a  Gascon,  who  was 
murdered  by  jealous  earls,  and  the  king  was  induced  to  pardon 
the  murderers.  Scotland  under  the  lead  of  Robert  Bruce 
established  its  independence  at  the  decisive  battle  of  Bannock- 
burn  in  1 3 14.  The  spirit  of  turbulence  still  prevailed,  and  in 
the  treatment  of  captured  rivals  there  was  an  apparent  lower- 
ing of  the  standard  of  morality,  for  many  instances  occurred 
of  the  slaughter  of  prisoners  of  distinction.  On  the  other 
hand  we  do  not  read  of  quite  so  much  murdering  of  the  poor 
and  defenseless.  Though  laws  were  passed,  they  were  obeyed 
only  by  those  who  were  powerless  to  resist.  The  whole  reign 
was  one  of  turmoil  and  disorder,  yet  the  superstitious  rever- 
ence for  the  clergy  declined,  and  men  called,  though  in  vain, 
for  a  government  by  fixed  rules.  Edward  II,  a  man  far  more 
humane  and  forgiving  than  most  of  his  barons,  fell  a  victim 
to  the  cruelty  and  perfidy  which  prevailed.  Having  been  taken 
prisoner  by  rebellious  barons,  he  was  murdered  by  thrusting 
a  red  hot  iron  into  his  bowels.  In  this  and  numerous  other 
reigns  prior  and  subsequent  the  barons,  who  enjoyed  so  many 
great  privileges  at  the  expense  of  the  multitude,  not  only  per- 
formed no  service  useful  or  beneficial  to  others,  but  were 
murderers,  robbers  and  traitors  by  nature  and  by  education. 
Such  is  the  so-called  gentle  blood  of  the  noble  houses  of  that 
time.  With  such  a  want  of  morality  among  the  rich  and 
powerful  it  is  no  wonder  that  there  was  crime  and  brutality 
among  the  so-called  lower  orders.  Security  for  life  or  prop- 
erty could  not  be  found,  and  as  a  consequence  there  was  gen- 
eral poverty,  distress  and  degradation. 

During  the  fifty  years'  reign  of  Edward  III  the  resources 
of  the  kingdom  were  exhausted  in  great  wars  to  maintain  the 
extravagant  and  groundless  claims  of  the  king  to  dominion 


THE  BRITISH  EMPIRE  693 

over  Scotland  and  France.  The  country  was  repeatedly  bur- 
dened with  ruinous  taxation  and  drained  of  its  able-bodied 
men  to  carry  on  the  struggle.  The  war  with  Scotland  served 
only  to  strengthen  the  prejudice  of  the  Scotch  against  British 
rule,  and  though  Edward  was  able  to  lead  great  armies  into 
France  and  lay  waste  great  districts,  though  he  gained  the 
renowned  battles  of  Crecy  and  Poitiers,  though  the  Black 
Prince  became  a  warrior  renowned  not  only  for  his  courage 
and  capacity  but  also  for  his  humanity,  the  net  result  of  the 
long  struggle  was  merely  a  little  shifting  of  boundaries,  des- 
tined soon  to  be  again  changed,  and  the  bloodshed,  vice  and 
misery  of  a  great  war.  The  nobility,  still  true  to  the  in- 
stincts which  had  ruled  them  in  the  acquisition  of  their  un- 
merited possessions,  were  constant  law  breakers,  robbers  and 
protectors  of  robbers.  The  chief  seats  of  vice  and  crime  were 
in  the  great  castles,  where  the  barons,  backed  by  their  armed 
retainers,  defied  all  rules  conflicting  with  their  purposes.  Yet 
in  spite  of  all  these  evils  some  progress  was  made  toward  the 
evolution  of  a  more  orderly  state  of  society.  Foreign  wars 
begot  a  national  spirit  and  the  organization,  equipment  and 
maintenance  of  the  great  armies,  which  invaded  France  and 
Scotland,  required  a  more  systematic  management  of  state 
affairs.  In  order  to  raise  money  Edward  found  it  necessary 
to  frequently  assemble  Parliament  and  obtain  its  assent  to  his 
measures.  He  repeatedly  recognized  and  promised  to  main- 
tain the  great  charter,  though  he  still  more  frequently  violated 
it.  Nevertheless  Parliament  came  to  be  regarded  more  and 
more  as  a  great  representative  of  the  nation,  and  the  house 
of  commons,  superior  in  morals  though  inferior  in  wealth, 
steadily  gained  in  influence.  In  the  later  years  of  Edward's 
reign  Parliament  assumed  the  right  to  impeach  the  king's 
ministers,  and  the  idea  of  the  accountability  of  the  ministers 
began  to  grow  from  the  jealousy  of  the  barons  of  the  king's 
favorites,  on  whom  he  conferred  authority.  Though  the  king 
called  on  Parliament  for  grants  of  taxes,  he  did  not  abstain 
from  arbitrarily  imposing  them  on  his  own  authority.  He 
still  asserted  the  right  to  promulgate  laws,  formulated  by 
himself  and  his  privy  council,  without  consulting  the  Parlia- 


694  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ment.  In  his  reign  the  papal  power  was  still  further  re- 
duced, and  a  statute  was  enacted  making  it  a  penal  offense  to 
procure  a  presentation  to  a  benefice  from  Rome,  and  by  an- 
other statute  persons  who  appealed  causes  to  the  Pope  were 
outlawed.  The  influence  of  the  clergy  over  the  laity  had  de- 
clined, and  the  old  weapons  of  excommunication  and  interdict 
had  lost  their  edges.  The  war  with  France  stimulated  the 
English  national  spirit,  and  the  use  of  the  French  language  in 
public  acts  and  documents  was  abolished.  Though  Edward, 
being  a  man  of  great  energy  and  ability,  ruled  despotically,  the 
three  forces,  of  king,  nobility  and  commons,  began  to  assume 
the  respective  functions  which  so  long  tended  to  hold  each 
other  in  check.  The  king  and  nobles  stood  for  war,  robbery 
and  unmerited  privilege,  the  commons  for  some  small  measure 
of  justice.  In  a  depraved  and  disorganized  state  of  society, 
physical  power  and  military  combination  without  regard  to 
moral  right  lead  in  the  formation  of  states.  It  is  only  by 
slow  degrees  and  countless  martyrdoms  that  the  moral  force, 
which  protects  the  helpless  and  innocent,  gains  mastery  and 
makes  possible  a  truly  great  state.  The  moral  purposes  of  the 
commons  were  superior  to  those  of  king  and  barons  and 
therefore  contained  the  stronger  vital  principle.  Their  in- 
fluence has  grown  and  must  inevitably  continue  to  grow,  as 
the  general  moral  tone  of  the  people  advances.  It  was  during 
the  French  wars  of  this  reign  that  artillery  first  came  into  use, 
and  the  result  of  the  great  battle  of  Crecy  is  said  to  have  been 
determined  by  the  English  guns. 

The  reign  of  Richard  II  shows  an  increasing  tendency  to 
resort  to  judicial  decisions  of  controversies,  without  any  well 
defined  disposition  on  any  part  to  do  justice.  Parliament  con- 
demned those  at  the  time  out  of  favor  without  a  hearing,  and 
caused  many  summary  executions  and  forfeitures.  Laws 
were  passed  but  not  observed.  Lawyers  multiplied  and  busi- 
ness in  the  courts  increased,  but  decisions  were  not  given  with 
much  regard  either  for  law  or  justice.  Though  the  feudal 
system  was  decaying,  no  firm  organization  had  taken  its  place. 
In  this  reign  we  find  the  first  reported  instance  of  an  uprising 
of  the  grievously  oppressed  common   people.     John   Ball,   a 


THE  BRITISH  EMPIRE  .  695 

preacher,  went  about  the  country  preaching  the  doctrine  of  the 
common  origin  and  brotherhood  of  man  and  their  equal  rights 
to  the  bounties  of  nature.  The  imposition  of  a  capitation  tax 
of  three  groats  per  head  on  all  persons  above  fifteen  years  of 
age  was  regarded  by  the  poor  as  a  most  grievous  burden.  The 
tax-gatherers  proceeded  in  its  collection  with  usual  harshness 
and  indecency,  and  for  an  insult  to  his  daughter  a  blacksmith 
knocked  out  the  brains  of  one  of  them  with  his  hammer.  By- 
standers applauded  and  the  populace  came  to  his  defense. 
Sedition  spread  like  wildfire;  there  was  a  general  uprising 
against  the  dissolute  and  tyrannical  nobility,  and  much  vio- 
lence was  done  them.  A  vast  multitude  assembled  on  Black- 
heath  under  the  leadership  of  Wat  Tyler  and  Jack  Straw, 
some  of  whom  insisted  on  kissing  the  King's  mother  as  she 
passed  through  their  midst,  though  without  further  insult  or 
injury.  They  demanded  an  interview  with  the  King,  but  he, 
being  afraid  to  trust  himself  in  their  hands,  went  back  to  the 
tower  for  safety.  They  broke  into  London,  burned  the  palace 
of  the  Duke  of  Lancaster  and  cut  off  the  heads  of  such  of  the 
gentry  as  fell  into  their  power.  The  King  finally  asked  for 
their  demands,  and  in  response  they  asked  a  general  pardon, 
the  abolition  of  slavery,  freedom  of  commerce  in  market  towns 
without  toll  or  imposts,  and  a  fixed  rent  on  lands  instead  of 
villeinage  service,  all  certainly  reasonable  and  less  rather  than 
more  than  their  natural  rights.  The  King  granted  the  de- 
mands and  made  a  charter  to  that  effect,  whereupon  the 
multitude  dispersed.  With  that  want  of  good  faith  so  char- 
acteristic of  the  ruling  class  through  all  those  disorderly  times 
the  King,  having  gathered  an  army  strong  enough  to  enforce 
his  will,  convened  a  parliament,  which  revoked  the  charters 
and  pardons  and  again  reduced  the  people  to  the  same  slavery 
as  before.  Many  were  arrested  and  executed  without  trial. 
Want  of  an  organization  through  which  all  might  continue 
to  act  in  concert  for  their  own  protection  after  their  separa- 
tion, left  the  multitude  at  the  mercy  of  the  King  and  their 
lords  backed  by  their  mercenary  followers.  Richard  himself 
afterward  fell  a  victim  to  the  faithlessness  of  the  barons,  who 
combined  for  his  overthrow  under  the  leadership  of  Henry, 


696  EVOLUIION  OF  GOVERNMENTS  AND  LAWS 

Duke  of  Lancaster.  Having  secured  custody  of  the  King  by 
treachery,  Lancaster  issued  writs  in  the  King's  name  con- 
vening a  parhament,  taking  care  to  fill  it  with  those  only  who 
were  devoted  to  his  interests.  The  King  was  impeached  and 
condemned  to  be  deposed,  without  any  real  hearing,  by  a  vote 
of  both  houses.  Thereupon  Lancaster  stood  forth  and  made 
a  declaration  recorded  as  follows: 

"In  the  name  of  Father,  Son  and  Holy  Ghost  I  Henry  of 
Lancaster  challenge  this  rewme  of  Inglande,  and  the  crown, 
with  all  the  membres  and  the  appurtenances;  als  that  I  am 
descendit  by  right  line  of  the  blode,  f owing  fro  the  gude  king 
Henry  therde,  and  throge  that  right  that  God  of  his  grace 
hath  sent  me,  with  help  of  kyn,  and  of  my  frendes  to  recover 
it;  the  which  rewme  was  in  point  to  be  on-done  by  defaut  of 
governance,  and  ondoying  of  the  gude  lawes."  In  this  form 
of  jargon  he  assumed  the  kingly  office.  Richard,  being  a 
prisoner  in  his  power,  soon  came  to  his  death,  whether  from 
violence  or  starvation  remains  an  unsettled  point.  England 
had  now  fairly  entered  on  that  period  of  its  history,  when  the 
villainous  deeds  of  kings  and  barons  were  largely  perpetrated 
with  the  aid  of  judicial  forms,  supplemented  with  cowardly 
murders  of  those  whom  it  was  deemed  dangerous  to  execute 
publicly.  Substantially  all  these  villainies  stand  charged  to 
those  of  so-called  gentle,  noble  blood. 

The  manners  of  the  times  of  Richard  are  indicated  to  some 
extent  by  the  make  up  of  his  household,  which  consisted  of 
10,000  persons,  requiring  three  hundred  people  in  the  kitchen. 
All  this  multitude  was  fed  from  the  king's  tables  at  the 
expense  of  the  state.  The  reign  of  Henry  IV  is  not  noted  for 
marked  constitutional  changes.  The  clergy  had  lost  their 
mastery  over  king  and  nobles  and  now  sought  to  perpetuate 
their  influence  over  the  multitude  by  cruelty.  In  1401  Wil- 
liam Santre,  having  been  condemned  as  a  heretic  by  the  clergy 
at  Canterbury  and  the  sentence  approved  by  the  House  of 
Peers,  was  burned  at  the  stake  under  a  writ  issued  by  the 
King.  The  King,  having  no  well  recognized  title  to  the  throne, 
sought  by  such  means  to  draw  the  clergy  to  his  support.  The 
clergy  before  his  reign  had  been  exempt  from  capital  punish- 


THE  BRITISH  EMPIRE  697 

ment,  but  in  1405  Henry  caused  the  archbishop  of  York  to  be 
summarily  condemned  for  treason  by  a  judge  specially  ap- 
pointed for  that  purpose,  who  without  indictment  or  trial  pro- 
nounced sentence  of  death  on  him,  which  was  promptly  exe- 
cuted. The  weakness  of  the  King's  title  caused  him  early  in 
his  reign  to  court  the  favor  of  the  commons.  In  the  first 
year  a  law  was  passed  at  their  instance  that  no  judge,  arraigned 
for  giving  an  unjust  decision,  should  plead  in  defense  the 
orders  of  the  king.  In  the  second  year  they  insisted  on  the 
practice  of  not  granting  the  king  any  supply  until  they  re- 
ceived an  answer  to  their  petition,  thus  in  effect  imposing  a 
condition  precedent  to  their  grant.  In  the  sixth  year  they 
appointed  treasurers  of  their  own  selection  to  receive  the  pub- 
lic moneys,  see  that  they  were  disbursed  for  the  intended  ob- 
ject and  render  an  account  to  the  house.  In  the  eighth  year 
they  established  various  regulations,  which  they  required  the 
members  of  the  king's  council  and  all  the  judges  to  swear  to 
observe.  In  the  later  years  of  his  reign  Henry,  having  estab- 
lished his  position,  again  asserted  his  prerogatives,  yet  on  the 
whole  there  was  a  marked  extension  of  the  power  and  influ- 
ence of  the  commons.  The  savagery  of  the  times  is  well  in- 
dicated by  the  passage  of  a  law  making  it  a  felony  to  cut  out 
any  person's  tongue  or  put  out  his  eyes,  barbarities  then  perpe- 
trated so  frequently  as  to  call  for  repressive  legislation. 
.  Henry  V,  who  during  the  life  of  his  father  had  led  a  wild 
and  dissolute  life,  exhibited  some  rare  qualities  on  coming  to 
the  throne,  chief  of  which  was  a  regard  for  law  and  respect 
for  those  who,  acting  in  subordinate  capacities,  enforced  it. 
The  chief  Justice,  Gascoigne,  had  sent  Henry  to  jail  for  in- 
solent conduct  in  his  court,  certainly  a  remarkable  exhibition 
of  judicial  courage  and  authority  for  those  times.  Henry  on 
coming  to  power  not  only  exhibited  no  ill-will  on  account  of 
it  but  continued  him  in  office,  as  well  as  the  other  counselors 
of  his  father  who  had  frowned  on  his  disorderly  conduct.  To 
insure  his  popularity  at  home  he  adopted  that  expedient  so 
often  employed  by  kings,  a  foreign  war  with  France,  on  the 
pretext  of  right  to  sovereignty  there.  This  war  brought  him 
great  glory  at  the  battle  of  Agincourt  but  without  profit  to 


698.     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

England.  On  his  death  the  succession  passed  to  his  infant 
son,  during  whose  minority  the  "protector"  named  by  Parha- 
ment  continued  the  war  with  France  with  great  success,  until 
the  appearance  of  Joan  of  Arc  at  the  head  of  the  French  army 
turned  the  tide  of  battle  and  caused  the  English  to  lose  all 
the  territory  which  they  had  spent  so  much  blood  to  acquire. 
When  she  finally  fell  into  their  hands,  fighting  in  defense  of 
the  town  of  Campeigne,  she  was  accused  of  witchcraft,  con- 
demned by  an  ecclesiastical  court  and  burned  at  the  stake. 
Though  this  appears  an  exceptionally  atrocious  act,  it  ac- 
corded fairly  with  the  cruel  and  treacherous  spirit  which  then 
prevailed  among  the  leading  characters.  The  assassination  of 
prisoners,  either  with  or  without  the  pretense  of  a  trial,  was 
of  frequent  occurrence.  The  Duchess  of  Gloster  was  accused 
of  witchcraft  in  1447,  ^^^'  while  she  escaped  with  a  sentence 
of  imprisonment  only,  her  associates,  who  were  jointly 
charged  with  the  same  offense,  were  condemned  and  exe- 
cuted. The  title  of  the  kings  of  the  House  of  Lancaster  to 
the  throne,  coming  through  a  junior  son,  had  been  regarded 
as  questionable,  and  the  Henry's  IV,  V  and  VI  courted  the 
support  of  parliament.  In  the  reign  of  Henry  VI,  a  weak, 
almost  an  imbecile  prince,  the  Duke  of  York  began  to  assert 
his  title  to  the  crown,  and  at  last  the  flames  of  that  barbarous 
struggle,  termed  the  war  of  the  roses,  between  the  adherents 
of  the  Houses  of  York  and  Lancaster  broke  out.  The  most- 
important  act  of  parliament  in  his  time  was  one  restricting  the 
suffrage  for  members  of  parliament  to  persons  possessing 
lands  yielding  forty  shillings  per  year,  free  of  all  burdens  and 
within  the  county.  It  seems  that  all  freeholders  had  exercised 
the  right  before  that  time.  This  reign  is  also  noted  for  the 
construction  of  the  first  national  debt  by  authority  of 
Parliament. 

During  the  early  period  of  Norman  rule  the  barons,  though 
they  slaughtered  the  poor  and  defenseless  on  occasion  most 
ruthlessly,  were  yet  generally  considerate  in  their  treatment 
of  men  of  their  own  class,  who  fell  into  their  power.  The 
spirit  of  caste  prevailed,  and  the  lives  of  prisoners  of  rank' 
were  generally  safe  in  the  hands  of  their  enemies.     The  prin- 


THE  BRITISH  EMPIRE  699 

ciples  of  the  feudal  system  were  such,  that  men  of  rank 
fought  each  other  in  the  open  and  for  the  glory  of  the  com- 
bat, but  despised  all  secret  assassination  and  treachery.  By 
the  time  of  Edward  IV  a  great  change  had  taken  place.  The 
barons,  whose  ancestors  for  generations  had  been  accustomed 
to  oppress  the  common  people  on  their  estates  to  the  last  point 
of  endurance,  could  take  nothing  more  from  them  than  they 
were  accustomed  to  receive.  The  only  chance  to  augment 
their  possessions  and  increase  their  importance  was  to  deprive 
some  rival  of  his  property.  It  was  found  that  to  do  this 
effectually,  it  was  usually  necessary  to  deprive  him  of  his  life 
also.  A  race  of  men  accustomed  to  take  the  fruits  of  the  toil 
of  others  without  return  and  to  despise  all  useful  employ- 
ments, naturally  had  no  moral  code.  The  frightful  barbarity 
with  which  the  leading  nobles  of  that  period  murdered  each 
other,  renders  the  history  of  the  time  a  dreary  and  disgusting 
record,  yet  the  fact  is  usually  overlooked  that  in  the  main  it 
was  a  process  by  which  society  was  relieved  of  a  most  cruel 
and  vicious  element.  Instead  of  continuing  to  join  their 
forces  to  keep  the  multitude  in  subjection,  they  fought  each 
other,  and  as  the  varying  fortunes  of  war  and  intrigue  placed 
one  murderous  baron  in  the  hands  of  an  enemy,  he  was  mur- 
dered, usually  to  be  avenged  later  by  the  slaughter  of  one  or 
more  of  the  same  class,  who  had  caused  the  deed  to  be  done. 
The  war  between  the  branches  of  the  royal  family  known  as 
the  Houses  of  York  and  Lancaster  shows  the  crudity  and 
weakness  of  a  system  of  government  based  merely  on  a  theory 
of  the  inheritance  of  power.  All  systems  of  this  kind  have 
their  root,  not  in  any  desire  to  promote  the  public  welfare, 
but  in  the  desire  of  rulers  to  transmit  their  power  to  their  own 
posterity.  They  are  established  by  educating  the  multitude  to 
believe  that  there  is  such  a  thing  as  royal  blood,  differing  in 
quality  from  that  of  common  mortals,  and  that  regal  power 
should  be  transmitted  from  the  reigning  monarch  to  one  of 
his  blood  according  to  a  fixed  rule.  The  supposed  convenience 
of  this  mode  of  designating  a  king  has  led  to  its  acceptance  by 
a  large  part  of  the  people  of  the  earth  in  all  ages.  Though  the 
history   of   many  nations   is   filled  with   instances   of   infant 


700  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

rulers,  utterly  incapable  of  governing  the  state,  of  imbeciles 
on  the  throne,  of  idle,  dissolute,  depraved  descendants  of  great 
kings,  of  cruel  monsters  in  human  similitude  who  have 
scourged  the  earth,  and  of  the  overthrow  of  weak  dynasties 
by  usurpers  mounting  the  throne,  usually  after  wading 
through  blood  and  smoking  ruins ;  so  persistent  is  the  tendency 
to  adhere  to  this  system,  that  it  still  prevails  in  most  countries 
of  Europe  and  Asia.  Though  Henry  IV  might  trace  one  line 
of  ancestors  back  through  John  of  Gaunt,  Duke  of  Lancaster, 
to  Edward  III,  the  title  to  the  throne  by  the  rule  of  inheri- 
tance was  undeniably  in  Richard  II  at  the  death  of  his  father. 
Richard  was  then  a  boy  only  twelve  years  of  age,  but  lack  of 
years  was  not  his  only  deficiency  in  qualification  for  the  ad- 
ministration of  the  government.  He  was  wanting  in  force 
and  vigor  to  rule  so  turbulent  a  nation,  and  Henry  seized  the 
throne  because  he  was  strong  enough  to  do  so.  For  three 
generations  the  succession  continued  in  the  House  of  Lan- 
caster, until  the  young  Edward  IV  of  the  York  line  came  to 
the  throne  sword  in  hand.  At  the  battle  of  Towton  Edward 
followed  victory  with  an  order  to  give  no  quarter  and  caused 
the  summary  execution  of  the  Earl  of  Devonshire,  who  fell 
into  his  hands  as  a  prisoner.  When  Parliament  assembled  Ed- 
ward's title  to  the  throne  was  affirmed.  All  grants  made  by 
the  kings  of  the  Lancaster  line  were  annulled  and  all  attainders 
were  revoked.  On  the  other  hand  they  passed  an  attainder 
of  Henry  VI,  his  Queen  Margaret,  their  infant  son  Edward 
and  a  long  list  of  nobles  who  adhered  to  their  party,  and  de- 
clared all  their  estates  forfeited  to  the  crown.  The  form  of 
a  parliamentary  decision  was  used,  but  the  spirit  of  enmity 
and  covetousness,  not  of  justice,  dictated  the  judgment.  A 
court  martial  condemned  the  Earl  of  Oxford  and  his  son.  Sir 
William  Tyrrel,  Sir  Thomas  Tudenham  and  John  Mont- 
gomery, and  caused  their  execution  and  forfeiture  of  their 
estates.  In  the  north  when  the  Duke  of  Somerset  and  Lords 
Roos  and  Hungerford  fell  into  the  hands  of  Edward's  fol- 
lowers at  Hexham  they  were  immediately  beheaded,  and  in 
like  manner  Sir  Humphrey  Nevil  and  others  were  executed  at 
Newcastle.     The  scaffold  and  the  axe  of  the  headsman  com- 


THE  BRITISH  EMPIRE  701 

pleted  the  work  of  destruction  left  unfinished  on  the  battlefield. 
A  rebellion  having  broken  out  in  Lincolnshire,  Lord  Welles, 
who  took  sanctuary  fearing  he  would  be  charged  with  treason, 
having  been  promised  safety  left  his  retreat  and  was  seized 
and  beheaded  along  with  Sir  Thomas  Dymoc  by  Edward's 
orders.  The  leaders  of  the  rebels,  being  soon  taken  prisoners, 
were  similarly  executed.  Edward,  when  not  warring  with  his 
subjects  to  maintain  his  authority,  gave  himself  up  to  licen- 
tiousness and  debauchery.  In  1470  the  Earl  of  Warwick 
drove  Edward  from  the  kingdom  and  taking  Henry  from  the 
tower  of  London,  in  which  he  had  been  confined  and  contrary 
to  the  general  custom  of  Edward  allowed  to  live,  proclaimed 
him  King.  A  Parliament  summoned  by  Warwick  reversed  all 
the  acts  of  Edward's  Parliament.  Executions  did  not  follow 
this  change  in  such  numbers.  The  victim  of  distinction  men- 
tioned is  the  Earl  of  Worcester.  The  Yorkists  seem  to  have 
been  more  fortunate  in  getting  away.  Within  six  months 
Edward  returned  and  recovered  his  kingdom  and  Henry  again 
became  his  prisoner.  Warwick  was  slain  in  battle,  and  his 
followers  were  given  no  quarter  but  slaughtered  in  great  num- 
bers. After  the  forces  of  Queen  Margaret  were  defeated  at 
Tewkesbury  with  much  slaughter,  the  Duke  of  Somerset  and 
many  other  men  of  distinction  were  dragged  from  the  church 
in  which  they  had  taken  sanctuary  and  beheaded.  Queen 
Margaret  and  her  son  Edward,  heir  to  the  House  of  Lancaster, 
were  taken  prisoners,  and  being  brought  before  the  King, 
young  Edward  was  stabbed  to  death  by  the  Dukes  of  Clarence, 
Gloster  and  others.  Margaret  was  confined  in  the  tower, 
where  King  Henry  expired  a  few  days  afterward.  Whether 
he  was  murdered  or  died  naturally  is  not  known,  though  the 
Duke  of  Gloster  is  charged  with  his  murder.  After  a  season 
of  rest  and  dissipation  Edward  invaded  France  without  ac- 
complishing any  notable  result.  The  condemnation  and  exe- 
cution of  Thomas  Burdet  for  saying,  that  he  wished  the  horns 
of  a  white  buck,  which  the  King  had  killed  while  hunting  in 
his  park,  in  the  belly  of  the  person  who  had  advised  the  King 
to  commit  that  insult  on  him,  was  but  one  of  his  many  cruel 
deeds.     The  deer  belonged  to  and  was  a  great  favorite  of 


702  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Burdet,  and  his  expression  was  uttered  under  the  smart  caused 
by  its  loss,  yet  judges  and  jurymen  were  found  servile  enough 
to  condemn  him,  and  he  was  beheaded  for  his  language.  It  is 
a  most  singular  fact  that  with  the  growth  of  judicial  power 
and  increased  study  of  the  law  there  was  a  marked  increase 
of  severity  and  heartlessness  in  the  treatment  of  persons 
charged  with  real  or  fancied  offenses.  John  Stacy,  a  clergy- 
man, was  charged  with  necromancy,  tried,  tortured,  con- 
demned and  executed  with  the  approval  of  many  of  the 
nobility.  These  men  were  friends  of  the  King's  brother,  the 
Duke  of  Clarence,  of  whom  the  King  was  jealous.  The  Duke, 
having  protested  against  these  executions  and  asserted  the 
innocence  of  the  men  thus  judicially  murdered,  was  arrested,, 
and  a  parliament  was  summoned,  before  which  he  was  tried 
on  a  charge  of  having  arraigned  public  justice.  The  King 
appeared  personally  as  his  accuser  and  prosecutor,  and  both 
houses  of  parliament  were  so  base  as  to  condemn  him  and 
petition  for  his  execution.  The  King's  clemency  toward  his 
brother  extended  no  farther  than  to  allow  him  to  choose  the 
manner  of  his  execution,  and  he  was  thereupon  drowned  in  a 
butt  of  malmsey.  On  the  death  of  Edward  IV  in  the  twenty- 
second  year  of  his  bloody  reign  the  succession  in  his  line  again 
fell  to  an  infant,  incapable  of  exercising  kingly  powers,  and 
Richard,  Duke  of  Gloster,  brother  of  the  deceased  King,  was 
made  regent.  Gloster  first  proceeded  to  cause  the  murder  of 
the  near  relatives  and  friends  of  Edward's  widow.  Though 
Richard  was  one  of  the  most  conscienceless  beings  that  ever 
appeared  in  human  form,  he  yet  sought  pretexts  and  argu- 
ments to  support  his  grossest  villainies  and  was  able  to  find 
men  vile  enough  to  do  the  most  infamous  deeds.  To  furnish 
a  basis  for  a  claim  of  right  to  the  crown  he  caused  a  preacher, 
Shaw,  to  preach  a  sermon  in  St.  Paul's,  charging  that  Edward 
IV  was  a  bastard  and  also  his  brother  the  Duke  of  Clarence 
and  asserting  that  Richard,  Duke  of  Gloster,  only  was  the  son 
of  his  father.  Here  was  a  most  remarkable  exhibition  of  the 
uncertainties  of  the  transmission  of  power  by  inheritance. 
First  there  was  the  question  as  to  whether  the  House  of  York 
or  of  Lancaster  was  in  the  true  line.     If  York,  then  was  the 


THE  BRITISH  EMPIRE  703 

incapable  minor  a  legitimate  heir?  On  no  generally  accepted 
theory  of  inheritance  could  Richard  claim  the  throne,  yet  his 
cunning  and  his  villainy  brought  him  a  brief  possession  of  it. 
By  false  promises  to  their  mother  Richard  obtained  the  cus- 
tody of  her  children.  The  infant  King  and  his  brother  were 
thereupon  confined  in  the  tower,  soon  murdered  by  Richard's 
orders  and  buried  in  the  ground  at  the  foot  of  the  stairs  under 
a  heap  of  stones.  The  Duke  of  Buckingham,  who  headed  a 
revolt  against  the  usurpation  of  Richard,  being  taken  prisoner 
was  summarily  beheaded,  as  were  others  of  less  note.  Richard, 
having  established  his  power,  summoned  a  parliament  in  1484 
and  sought  to  gain  the  support  of  the  nation  by  governmental 
reforms.  The  system  of  extorting  money  under  the  name  of 
benevolences  was  condemned  and  prohibited,  and  this  king, 
who  ruled  in  spite  of  all  law,  resorted  to  legal  reforms  to 
fortify  his  authority. 

It  was  impossible  however  for  Richard  to  blind  the  nation, 
either  to  the  fact  of  his  usurpation  or  the  many  murderous 
villainies  he  had  perpetrated,  and  the  Earl  of  Richmond, 
backed  by  a  small  force  brought  over  from  France,  but  far 
more  by  the  general  hatred  and  distrust  of  Richard  causing 
supporters  to  come  to  his  aid  from  every  side,  defeated  him  at 
Bosworth,  where  Richard  was  killed  in  battle.  Many  of  the 
King's  supporters  died  with  him,  and  others,  taken  prisoners, 
were  beheaded  for  participation  in  his  bloody  work.  Rich- 
mond, having  succeeded  on  the  field  of  battle  and  being  rec- 
ognized as  the  sovereign,  was  yet  at  a  loss  to  know  on  what 
legal  ground  to  base  his  title  to  the  throne.  Parliament  when 
convened  obsequiously  declared,  "that  the  inheritance  of  the 
crown  should  rest,  remain  and  abide  in  the  King"  without 
taking  trouble  to  point  out  a  title  by  descent  or  to  recognize 
his  right  merely  as  a  victor  in  possession.  An  act  of  attainder, 
condemning  all  the  leading  noblemen  who  had  fought  on  the 
side  of  Richard,  was  passed  and  their  estates  seized.  His 
reign  was  disturbed  by  impostors  pretending  to  be  heirs  to 
the  throne  rather  than  by  persons  of  the  blood.  The  first 
was  one  Simnel,  a  boy  chosen  and  put  forward  as  the  second 
son  of  Edward  IV  alleged  to  have  escaped  from  confinement 


704  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  the  tower  and  to  be  the  true  heir  to  the  throne,  as  Duke  of 
York.  His  pretensions  were  first  made  pubHc  in  Ireland, 
where  he  was  accepted  as  the  King  throughout  the  whole 
island,  and  a  force  was  raised  to  invade  England  in  his  inter- 
est. A  landing  was  made  in  Lancashire,  and  some  support 
came  to  him  from  Margaret  of  Burgundy,  who  sent  his  2,000 
Germans,  and  a  few  Englishmen  joined  their  fortunes  with 
his.  A  bloody  battle  was  fought  in  which  he  was  defeated, 
and  being  taken  prisoner  he  was  deemed  so  contemptible  that 
he  was  made  a  scullion  in  the  King's  kitchen.  He  had  no 
estate  to  confiscate,  so  there  was  nothing  to  be  gained  from 
his  execution.  A  more  skillful  imposter,  said  to  bear  a  strong 
resemblance  to  Edward  IV,  was  Perkin,  who  also  personated 
the  Duke  of  York  with  considerable  success  and  received  the 
support  of  Margaret  of  Burgundy.  Many  English  noblemen 
gave  countenance  to  his  pretensions,  and  Henry,  having  ob- 
tained information  of  their  doings,  caused  a  considerable 
number  of  them  to  be  arrested  and  condemned  for  treason; 
part  of  whom  were  executed  and  the  rest  pardoned.  Among 
those  condemned  and  executed  was  his  own  lord  chamberlain, 
Stanley,  whose  great  wealth  afforded  ground  for  his  destruc- 
tion. Perkin  succeeded  in  gaining  a  considerable  following, 
but  was  defeated  and  taken  prisoner.  Henry  did  not  at  first 
cause  his  execution,  but  he  was  soon  accused  of  having  con- 
spired to  escape  from  the  tower  and  hanged  at  Tyburn.  The 
Earl  of  Warwick  and  several  other  great  lords  were  executed 
for  complicity  in  his  treason.  Henry's  policy  was  to  use  the 
lawyers  and  the  machinery  of  the  courts  to  destroy  the  most 
rich  and  powerful  lords  and  seize  their  estates.  His  avarice 
was  his  most  marked  characteristic.  His  principal  agents  for 
the  extortion  of  money  from  his  subjects  were  two  lawyers, 
named  Empson  and  Dudley,  who  used  the  forms  of  law  and 
the  instrumentality  of  the  courts  to  rob  the  people  and  fill 
the  King's  treasury  and  their  own  pockets.  People  having 
property  were  falsely  or  truthfully  charged  with  all  sorts  of 
offenses  and  thrown  into  prison,  frpm  which  they  could 
escape  only  by  the  payment  of  heavy  fines  or  commutations. 
It  was  in  Henry  VII's  reign  that  the  odious  Star  Chamber 


THE  BRITISH  EMPIRE  705 

received  the  sanction  of  Parliament,  though  it  had  been  in 
existence  long  before.  The  secrecy  of  its  proceedings  and  the 
arbitrary  methods  it  pursued  were  the  leading  grounds  of 
objection  to  its  authority,  but  Empson  and  Dudley  had  little 
difficulty  with  ordinary  courts  and  juries.  Trials  were  not  had 
either  before  an  impartial  court  or  jury.  The  judges  were  the 
creatures  of  the  King  and  the  juries  were  packed  to  do  his 
work.  During  this  reign  much  was  done  to  obliterate  the 
feudal  system.  Numerous  acts  of  parliament  were  passed 
against  engaging  retainers  and  giving  them  badges  and  liver- 
ies to  wear ;  thus  prohibiting  the  great  lords  from  keeping  up 
their  private  armies  to  aid  them  in  their  outrages.  The  aliena- 
tion of  entailed  estates  by  means  of  a  fine  or  common  recovery 
was  authorized  by  statute.  Henry  was  probably  the  most 
absolute  and  despotic  king  England  had  ever  had,  but  he  did 
most  to  break  the  power  of  the  feudal  aristocracy.  The  in- 
vention of  the  art  of  printing  greatly  facilitated  the  dissemina- 
tion of  learning,  and  the  discovery  of  America  stimulated  the 
spirit  of  inquiry  and  adventure  and  brought  into  play  those 
activities,  which  have  resulted  in  so  much  material  and  moral 
progress. 

The  reign  of  Henry  VUI  1509  to  1547,  affords  a  most  in- 
teresting study  for  the  student  of  governments  and  legislation. 
No  more  absolute  despot  ever  ruled  England  and  few  any 
other  country,  yet  he  exercised  his  power  through  the  instru- 
mentality of  a  parliament  and  of  courts  and  juries.  He  found 
no  difficulty  in  condemning  to  death  whomsoever  he  willed, 
yet  for  the  most  part  the  condemnations  were  for  a  real  or 
pretended  offence  and  under  the  form  either  of  a  bill  of  at- 
tainder or  a  judgment  of  a  court.  He  continued  the  practice, 
which  had  prevailed  in  past  reigns,  of  destroying  the  obnoxious 
noblemen,  rather  than  the  indiscriminate  slaughter  of  the  poor, 
and  the  wholesome  principle  of  punishing  leaders  rather  than 
their  more  ignorant  followers  was  applied  in  dealing  with  the 
few  popular  uprisings  which  disturbed  his  reign.  It  is  exceed- 
ingly difficult  to  comprehend  how  Henry  maintained  even  his 
power,  and  much  more  so  how  he  preserved  a  measure  of  at- 
tachment from  his  subjects,  with  all  the  rank  injustice  and 


7o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

barbarity  he  exercised.  Doutbless  the  destruction  of  the  old 
nobihty  and  the  continued  pohcy  of  taking  off  the  head  of 
anyone  who  plotted  against  the  King  had  much  to  do  with  the 
submissiveness  of  the  lords  of  his  day,  many  of  whom  were 
newly  created  and  received  their  dignities  at  his  hands. 

Ten  parliaments  were  summoned  in  the  thirty-eight  years 
of  his  reign  and  held  twenty-three  sessions.  Law-making  went 
on  at  accelerated  pace,  and  lawyers  and  numerous  courts 
were  constantly  employed  in  administering  the  law,  though 
with  very  httle  regard  to  justice.  Penal  statutes  multiplied 
and  capital  punishments  followed  not  only  the  crime  of  murder 
but  a  long  list  of  offences.  Treason  came  to  head  the  list  of 
capital  ones  and  with  misprision  of  treason  added  afforded  a 
basis  for  charges  against  any  subject,  who  for  any  cause  was 
obnoxious  to  the  King.  By  means  of  a  prosecution  on  an 
accusation  of  this  kind  the  King  could,  in  what  passed  as  a 
lawful  manner,  destroy  his  enemy  and  take  his  estate.  Per- 
sons against  whom  there  was  evidence  could  be  tried  before 
the  courts,  and  those  against  whom  there  was  none  were  at- 
tainted by  act  of  Parliament  without  the  form  of  a  trial. 
Severe  punishments  were  also  inflicted  on  thieves  and  rob- 
bers to  an  appalling  extent.  It  is  said  that  72,000  of  these 
were  executed  during  this  reign.  But  the  most  conspicuous 
instances  of  the  use  of  legal  forms  to  effectuate  the  will  of  a 
despot  were  those  involving  Henry's  wives.  First  he  tired  of 
the  Spanish  Catharine,  who,  when  he  married  her,  was  the 
widow  of  his  brother  Arthur.  After  living  with  her  for 
twenty  years  he  pretended  that  he  had  conscientious  scruples 
as  to  the  validity  of  a  marriage  with  the  wife  of  a  deceased 
brother.  He  first  tried  to  obtain  a  divorce  from  the  Pope,  but 
failing  there  he  procured  an  act  of  parliament  prohibiting  all 
appeals  to  Rome  in  causes  of  marriage,  divorce,  wills  and  other 
suits  cognizable  in  the  ecclesiastical  courts.  He  then  had 
Cranmar,  archbishop  of  Canterbury,  who  owed  his  place  to 
the  King,  organize  a  court  and  pronounce  a  judgment  an- 
nulling the  marriage.  Previous  to  this  decree  Henry  had 
married  Anne  Boleyn,  a  younger  and  more  attractive  woman 
than  Catharine  who  was  his  senior  by  six  years  and  now  quite 


THE  BRITISH  EMPIRE  707 

faded.  After  a  little  time  he  became  suspicious,  probably 
without  just  grounds,  of  Anne  and  caused  her  to  be  tried  by 
a  jury  of  twenty-six  peers.  Though  there  was  no  proof  of 
any  real  criminality  on  her  part,  this  obsequious  jury  con- 
demned her  to  death,  and  she  was  beheaded.  The  next  morn- 
ing he  married  her  maid,  Jane  Seymour,  who  had  the 
fortune  to  die  after  the  birth  of  a  son.  Henry  rejoiced  over  the 
birth  of  a  son  and  did  not  deem  it  necessary  to  mourn  over 
the  loss  of  a  wife.  His  minister,  Cromwell,  who  had  risen 
to  remarkable  wealth  and  influence,  fell  out  of  favor,  was 
attainted  by  act  of  parliament  and  beheaded.  Then  Henry 
married  Catharine  Howard,  who  in  turn  was  attainted  by  act 
of  parliament  and  beheaded  for  unchaste  conduct.  Though 
Henry  succeeded  in  carrying  out  his  horrible  purposes,  the 
method  pursued  was  a  precedent  more  favorable  to  the  se- 
curity of  life  than  secret  murder  or  execution  by  the  arbitrary 
order  of  the  King.  Later  parliaments  and  juries  were  not  so 
subservient,  and  later  despots  were  not  able  to  dictate  bills 
of  attainder  and  sentences  of  courts  with  such  ease. 

The  period  of  Henry  VHI's  reign  covers  the  time  of  the 
great  religious  struggle,  styled  the  Reformation,  and  of  his 
public  acts  those  affecting  the  church  and  the  religious  estab- 
lishments were  of  the  greatest  importance  and  most  far-reach- 
ing consequences.  Though  he  professed  adherence  to  the 
established  faith,  he  denied  the  temporal  power  of  the  Pope 
in  his  dominions.  But  he  went  much  farther,  and  in  1534 
he  obtained  an  act  of  parliament  conferring  on  him  the  title 
of  Head  of  the  Church  of  England,  and  acknowledging  his 
inherent  power  "to  visit  and  repress :  redress,  reform,  order, 
correct,  restrain  or  amend  all  errors,  heresies,  abuses,  offences, 
contempts  and  enormities,  which  fell  under  any  spiritual  au- 
thority or  jurisdiction."  Parliament  also  made  it  a  felony  to 
imagine  or  speak  evil  of  the  King,  Queen,  or  his  heirs.  Act- 
ing under  this  authority  Henry  made  his  own  selection  of 
what  he  deemed  the  essential  tenets  of  religion.  In  1539, 
by  the  Stat,  31,  Henry  VHI  ch.  14.  Six  articles  of  faith 
were  established,  and  a  denial  of  the  first  article,  which  de- 
clared the  real  presence  of  the  body  and  blood  of  Christ  in  the 


7o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

sacrament,  subjected  the  person  to  death  by  fire  with  for- 
feiture of  estate,  without  the  privilege  of  abjuring  the  error. 
Denial  of  either  of  the  other  five  articles  subjected  the  of- 
fender to  forfeiture  of  goods  and  imprisonment  at  the  King's 
pleasure.  The  cause  of  religious  freedom  was  greatly  ad- 
vanced by  Henry  through  the  translation  and  publication  of 
the  Bible  in  the  English  language.  Henry  seems  to.  have  had 
an  idea  that  the  book  itself  furnished  a  definite  standard  of 
faith.  He  however  was  not  able  to  find  an  abiding  interpre- 
tation for  himself.  Parliament  was  so  complaisant  as  to 
grant  a  ratification  in  advance  of  such  tenets  as  his  commis- 
sioners with  his  approval  might  formulate,  and  he  soon  after- 
ward published  a  small  volume,  called  the  Institution  of  a 
Christian  Man,  which  was  made  the  standard  of  orthodoxy. 
He  soon  became  dissatisfied  with  this  and  published  another^ 
styled  the  Erudition  of  a  Christian  Man,  changing  the  stand- 
ard in  some  respects.  Most  important  of  all  his  public  acts 
was  his  destruction  of  the  monasteries,  which  had  become 
numerous  and  rich.  He  began  first  on  the  lesser  ones,  then 
swept  them  all  away  and  seized  their  property ;  645  monaster- 
ies, ninety  colleges,  2,374  chantries  and  free  chapels  and  no 
hospitals  were  abolished  and  their  property  seized.  Though 
some  disorder  was  occasioned  by  these  acts,  Henry  found 
means  to  conciliate  the  laity  by  the  uses  he  made  of  the 
property  seized.  Only  in  one  particular  did  he  meet  with  any 
resistance  during  his  whole  reign  from  his  parliament,  namely 
that  of  the  granting  of  taxes,  and  in  this  they  sometimes  made 
terms  with  him  by  which  his  demands  were  modified,  yet  he 
did  not  hesitate  to  force  the  payment  of  benevolences.  The 
complete  abandonment  of  all  the  restrictions  imposed  on  the 
king  by  the  Great  Charter  is  perhaps  best  illustrated  by  Stat. 
31,  Henry  VHI,  Ch.  8,  by  which  parliament  recognized  the 
king's  proclamation  as  having  the  same  force  as  an  act  of 
parliament.  By  a  later  act  they  provided  a  court  for  the  en- 
forcement of  the  king's  proclamations.  It  was  during  this 
reign  that  trade  with  the  Netherlands  began  to  develop,  and 
skilled  workmen  from  Flanders  in  large  numbers  came  over 
to  England  to  carry  on  their  trades.     In  response  to  popular 


THE  BRITISH  EMPIRE  709 

prejudices  against  these  more  skillful  foreigners  restrictive 
laws  were  made  against  them.  Many  clumsy  and  ineffectual 
efforts  were  made  to  regulate  wages,  the  prices  of  food  and 
commodities,  and  the  style  of  apparel.  Physicians,  barbers 
and  surgeons  and  various  tradesmen  were  made  bodies  cor- 
porate with  special  privileges.  In  1546  the  first  law  recog- 
nizing interest  on  money  as  lawful  and  limiting  it  to  ten  per 
cent  was  enacted.  Fierce  religious  controversy  and  persecu- 
tion for  mere  opinion  began  in  this  reign,  and  that  spirit  of 
martyrdom,  which  has  appealed  so  strongly  to  succeeding 
generations,  was  manifested  by  those  who  from  the  flames  at 
the  stake  gloried  in  death  for  what  they  believed  to  be  relig- 
ious truth.  It  cannot  be  said  that  either  Henry  or  the  mass 
of  the  people  of  England  in  his  day  exhibited  any  signs  of 
advanced  morality.  They  did,  however,  while  upholding  arbi- 
trary power  to  an  unprecedented  point,  proceed  by  better 
methods.  The  parliament  passed  severe  and  arbitrary  laws, 
visiting  death  on  offenders  great  and  small,  but  all  this  was  in 
an  effort  to  evolve  order  out  of  chaos  and  regulate  the  con- 
duct of  men  by  fixed  rules  to  which  all  were  to  conform.  The 
religious  struggle  was  an  attempt  to  extract  the  real  truth 
from  a  multitude  of  errors.  Fundamental  moral  principles 
were  little  studied  or  regarded.  The  all  engrossing  motive 
was  personal  interest,  to  be  furthered  by  the  possession  of 
property  on  earth  and  the  luxuries  of  heaven  hereafter. 

At  the  time  of  Henry's  death  his  son  Edward  was  but  nine 
years  of  age.  By  his  will  Henry  appointed  sixteen  executors, 
to  whom  he  entrusted  the  regal  power  during  Edward's  mi- 
nority, which  he  limited  to  the  age  of  eighteen.  He  further 
appointed  twelve  councillors  to  aid  them  with  advice,  but  on 
whom  no  authority  was  conferred.  The  Earl  of  Hereford, 
afterward  made  Duke  of  Somerset,  maternal  uncle  of  the 
King  and  appointed  as  one  of  his  executors,  was  named  pro- 
tector, and  as  such  assumed  the  actual  rulership  of  the  king- 
dom. The  religious  controversy  went  on  and  Protestantism 
continued  to  grow,  countenanced  and  supported  by  the  pro- 
tector. War  with  Scotland  and  with  France  came  on  as  usual. 
Lord  Seymour,  a  younger  brother  of  the  protector,  plotted 


7IO  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

against  his  authority  and  was  thereupon  attainted  by  parlia- 
ment and  beheaded  on  a  warrant  issued  by  Somerset.  Not- 
withstanding the  growth  of  Protestantism  the  burning  of 
heretics  went  on,  and  women  as  well  as  men  went  up  in  smoke 
for  opinions  sake.  Insurrections  having  occurred  because  of 
the  destitution  of  the  common  people,  an  act  of  parliament 
was  passed  making  it  treason  for  twelve  or  more  persons  to 
meet  on  any  matter  of  state  and  fail  to  disperse  at  the  com- 
mand of  a  lawful  magistrate.  The  foreign  trade  of  England 
had  been  carried  on  from  the  time  of  Henry  III  mainly  by 
agents  of  the  Hanse  Towns,  to  whom  he  gave  a  charter  of  in- 
corporation with  special  privileges.  These  privileges  were 
taken  away  by  this  administration  and  native  traders  were 
placed,  on  an  equal  footing.  An  advantageous  commercial 
treaty  was  made  with  the  King  of  Sweden,  which  stimulated 
trade  with  that  country.  Somerset,  having  made  himself  dis- 
tasteful to  the  leading  spirits  of  the  kingdom,  was  displaced 
from  power  and  after  a  short  interval  put  on  trial  before  a 
jury  of  twenty-seven  peers,  among  whom  were  his  chief  ene- 
mies and  accusers,  condemned  for  treason  and  executed  on 
Tower  Hill.  Early  in  this  reign  under  the  influence  of  Somer- 
set a  bill  had  been  passed  mitigating  the  severity  of  the  law 
against  treason,  but  later  under  Northumberland's  rule  another 
rigorous  act  was  passed,  to  which  the  House  of  Commons 
appended  the  important  safeguard  of  a  requirement,  that  the 
crime  should  be  proved  by  two  witnesses,  confronting  the  ac- 
cused. Afterward  when  a  bill  to  attaint  Tonstal,  bishop  of 
Durham,  was  passed  by  the  House  of  Lords,  the  Commons 
rejected  it  because  of  the  non-production  of  the  witnesses. 
Edward  died  in  his  sixteenth  year  after  a  reign  of  seven  years, 
which  again  illustrated  the  folly  of  the  transmission  of  kingly 
power  by  inheritance  to  infants  utterly  incapable  of  exercis- 
ing it.  Various  acts  were  passed  for  the  purpose  of  regulating 
trade  and  manufacturers.  One  prohibited  victuallers  and 
craftsmen  from  combining  to  raise  prices,  another  made  mi- 
nute provisions  regulating  the  manufacture  of  woolen  cloth, 
and  another  denounced  regrators,  forestallers  and  ingrossers. 
Ale  and  tippling  houses  also  called  for  regulation,  anrl  justices 


THE  BRITISH  EMPIRE  711 

of  the  peace  were  empowered  to  put  them  under  bond  for  the 
maintenance  of  good  order.  Thus  we  see  that  the  law-making 
power  then  as  now  was  troubled  with  questions  growing  out 
of  trade  combinations  and  the  sale  of  intoxicants. 

Mary,  eldest  daughter  of  Henry  by  Catharine,  succeeded 
Edward.     She  was  a  bigoted  Catholic  and  a  sour  old  maid. 
Her  brief  reign  of  five  years  again  illustrated  the  folly  of 
passing  supreme  power  by  inheritance  in  accordance  with  an 
inflexible  rule.     She  had  no  quality  of  head  or  heart  fitting  her 
for  such  a  station.     Narrow  bigotry  caused  the  revival  of 
religious  persecutions,  and  2yj  persons  were  burned  at  the 
stake.    To  do  this  horrible  work  a  commission  of  twenty-one 
persons  was  named,  any  three  of  whom  could  act.     Spies,  in- 
formers and  torture  were  employed  to  discover  victims,  and 
trial  by  jury  was  denied.     Aside  from  these  persecutions  the 
cruel  beheading  of  Jane  Gray,  her  husband  and  a  number  of 
other  prominent  men,  bore  witness  to  the  barbarity  of  her 
character.     At  the  age  of  thirty-seven  she  married  Philip  of 
Spain,  son  of  the  Emperor  Charles  V,  her  junior  by  eleven 
years,  an  alliance  distasteful  to  her  subjects,  and  which  in- 
volved England  in  foreign  wars  resulting  in  the  loss  of  Calais, 
so  long  held  by  England  as  a  door  of  entry  into  France.     In 
the  matter  of  granting  supplies,  parliament  was  not  so  pliant 
as  in  the  time  of  her  father,  and  her  demands  were  refused 
or   modified   with  novel  firmness.      Nevertheless   she   forced 
contributions  of  money  from  her  more  wealthy  subjects  with- 
out authority  of  law,  to  be  squandered  in  the  wars  of  her 
husband,  who  had  regard  neither  for  her  nor  the  people  of 
her  kingdom.     As  far  as  lay  in  her  power  she  restored  the 
authority  of  the  Pope,  but  was  unable  to  execute  his  command 
to  restore  the  church  lands,  which  had  passed  into  other  hands. 
The  long  reign  of  Elizabeth,  from  1558  to  1603,  is  looked 
on  as  one  of  the  most  prosperous  in  the  whole  history  of 
England,  and  many  have  been  inclined  to  accord  the  credit  to 
her.    It  is  one  of  the  arts  of  the  statesman  to  claim  credit  for 
all  good  fortune  that  may  come  from  any  source  and  to  point 
out  some  cause  other  than  his  own  fault  for  ever)--  evil.    Simi- 
lar craft  has  been  resorted  to  by  the  clergy  in  all  superstitious 


712  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

btates  for  strengthening  their  authority.  EHzabeth  was  quite 
as  absolute  and  arbitrary  a  despot  as  her  father,  yet  she  ad- 
hered even  more  closely  than  he  to  the  forms  of  law.  For 
supplies  she  summoned  parliaments,  but  haughtily  rebuked 
them  when  they  exhibited  any  disposition  to  legislate  in  the 
public  interest,  claiming  as  her  sole  prerogative  the  general 
care  of  the  public  welfare.  Trials  and  executions  for  treason 
were  numerous,  the  most  noted  being  those  of  her  rival,  Mary 
Queen  of  Scots,  the  Duke  of  Norfolk,  Earl  of  Northumber- 
land and  her  former  favorite  the  Earl  of  Essex.  She  pro- 
fessed great  reluctance  and  sorrow  for  the  executions  of  Mary 
and  Essex,  but  whether  real  or  feigned  is  doubtful,  for  the 
writs  were  signed  by  her  and  the  convictions  were  at  her  in- 
stance. In  state  trials  juries  were  generally  called,  but  in  those 
times  afforded  no  security  for  a  defendant.  A  verdict  of 
acquittal  in  opposition  to  the  wishes  of  the  Queen  was  followed 
by  fine  and  imprisonment  of  the  jurors.  The  period  of  her 
reign  was  one  of  awakening  of  the  activities  of  the  people, 
not  because  of  her  rule  but  in  spite  of  it.  The  discovery  of 
America,  the  great  impetus  to  learning  imparted  by  the  art 
of  printing,  the  spirit  of  investigation,  profoundly  stimulated 
by  the  reformation,  and  of  adventure  in  distant  seas,  all  con- 
tributed to  that  mental  and  physical  activity  which  alone  can 
elevate  a  nation.  In  her  wars  Elizabeth  is  entitled  to  more 
credit  than  most  despots.  Though  sometimes  aggressive  and 
though  her  battles  with  foreign  enemies  were  all  on  foreign 
soil,  her  general  policy  was  defensive  rather  than  aggressive. 
Spain  having  become  the  greatest  power  in  Europe,  she  al- 
lied herself  with  the  Netherlands  in  their  struggle  for  liberty 
and  then  with  France  to  curb  Spain.  The  fortunate  storm, 
which  disabled  the  vast  armada  built  by  Philip  for  the  purpose 
of  invading  and  conquering  England,  followed  by  the  defeat 
of  the  great  fleet  later  on,  gave  her  renown  and  tended  to 
direct  British  energies  in  the  course  which  has  since  made 
England  mistress  of  the  sea.  Shipbuilding  and  sea  ventures 
were  induced  largely  for  private  gain,  in  enterprises  which 
might  fairly  to  be  designated  as  piratical.  Long  before  war 
had  been  declared  between  the  two  countries,  British  vessels 


THE  BRITISH  EMPIRE  713 

made  many  rich  prizes  by  capturing  Spanish  vessels  and  pil- 
laging Spanish  towns.  Her  wars,  like  all  others,  were  ex- 
pensive, destructive  and  resulted  in  main  merely  in  leaving 
the  sovereignty  of  territory  without  great  change.  The  effects 
of  the  peaceful  activities  of  preparation  for  war  in  building, 
arming  and  equipping  ships,  were  of  the  utmost  benefit.  The 
art  of  shipbuilding  was  greatly  advanced,  and  the  people  were 
taught  to  look  out  upon  a  new  world,  from  which  in  time  the 
ships  were  to  bring  in  peaceful  and  beneficial  trade  vastly 
greater  profits  than  it  was  possible  to  obtain  by  the  capture  of 
all  the  prizes  then  floating  on  the  water.  Another  great  benefit 
came  through  the  barbarous  cruelty  of  the  Spaniards  in  the 
Netherlands,  which  caused  many  skilled  weavers  and  mechan- 
ics to  go  from  that  country,  where  the  arts  were  much  more 
advanced,  into  England.  From  this  period  a  more  rapid  im- 
provement in  mechanical  arts  dates.  The  gain  was  not  so 
much  in  the  acquisition  of  a  few  skilled  artisans,  as  in  the 
knowledge  of  their  arts  which  was  imparted  to  others  and 
transmitted  to  succeeding  generations.  The  religious  agita- 
tion went  no  farther  than  an  investigation,  which  assumed  the 
Bible  to  be  the  sole  authentic  evidence  of  religious  truth.  The 
Reformers  denied  that  the  book  warranted  the  pretensions  of 
the  religious  system  of  Rome.  The  bigotry  of  many  of  the 
Reformers  was  not  less  than  that  of  the  Catholics,  and  heresy 
against  their  interpretation  of  the  Bible  was  as  deadly  a  sin 
in  their  eyes  as  their  own  opinions  were  in  those  of  the 
Catholics.  The  search  after  religious  truth  led  directly  to  an 
inquiry  into  the  foundation  of  the  claims  of  the  clergy  to 
temporal  power  and  revenues.  It  was  a  movement  distinctly 
hostile  to  the  temporal  power  and  earthly  advantages  of  the 
church  officials,  priests  and  monks.  This  search  after  the 
basis  of  authority  naturally  led  to  an  inquiry  into  the  basis  of 
the  King's  authority  and  the  right  of  the  people  to  freely  dis- 
cuss matters  of  public  concern.  In  1576  Peter  Wentworth,  a 
Puritan,  made  a  set  speech  in  the  House  of  Commons  on  the 
subject  of  liberty,  and  especially  on  the  privilege  of  members 
of  the  house  to  freely  discuss  public  questions,  maintaining 
that  the  Queen's  prerogative  was  subject  to  limitation  of  law. 


714  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Strangely  enough  the  house  itself  took  offence  at  his  bold  ut- 
terances, committed  him  to  the  custody  of  the  sergeant  at  arms 
and  appointed  a  committee  to  consider  his  case.  After  a 
month  the  Queen  graciously  ordered  his  release.  Elizabeth 
achieved  a  great  success  by  getting  the  discordant  factions  in 
Scotland  to  submit  their  differences  to  her  for  arbitration,  but 
the  treatment  of  Queen  Mary,  her  long  imprisonment  and 
final  execution,  bear  witness  to  the  mahgnant  enmity  of  Eliza- 
beth and  exhibited  a  great  moral  defect  in  her  character. 
Though  the  influence  of  Elizabeth  in  Scotland  was  greater 
than  that  of  most  of  her  predecessors,  that  kingdom  was  in 
constant  turmoil  and  civil  strife.  Ambitious  men  and  women 
murdered  and  robbed  each  other  remorselessly  to  gain  power 
and  place.  It  is  probable  that  Queen  Mary  was  privy  to  the 
murder  of  a  husband,  but  her  accusers  were  many  of  them 
guilty  of  bloody  deeds  of  little  less  atrocity.  Elizabeth  sent 
troops  into  Ireland  to  make  the  nominal  sovereignty  of  the 
English  crown,  which  had  been  recognized  for  four  centuries, 
real  and  effective  as  a  governing  force,  but  her  generals  met 
with  very  little  success.  Instead  of  yielding  revenue,  the  Irish 
possessions  entailed  a  burden  of  expense.  Aided  by  the  Span- 
iards, the  Irish,  who  still  adhered  to  the  church  of  Rome, 
were  able  to  elude  her  generals.  It  was  in  her  reign  that  the 
first  British  settlement  was  planted  in  America  by  Sir  Walter 
Raleigh  in  Virginia,  but  it  was  abandoned  and  the  discontented 
settlers  taken  back  to  England  by  Drake.  Various  bold  sea- 
men sailed  along  the  American  coast  and  into  the  West  Indies. 
The  impulse  which  started  men  out  on  the  seas  came,  not  from 
the  rulers,  but  from  the  oppressed  multitude.  The  freedom 
of  life  on  the  ocean  had  its  influence  on  the  habits  of  thought 
of  the  navigators,  and  the  spirit  not  only  of  adventure  but  of 
individuality  and  independence  was  profoundly  stimulated. 
Elizabeth  is  sometimes  given  great  credit  for  having  stimu- 
lated commerce  and  promoted  intercourse  with  foreign  coun- 
tries. It  is  true  that  advantages  of  this  kind  accrued  from  her 
foreign  wars  and  alliances,  but  they  came  as  incidents  and  not 
as  results  of  a  settled  policy  of  trade  expansion.  On  the  con- 
trary no  other  British  sovereign  did  so  much  to  burden  com- 


THE  BRITISH  EMPIRE  7i5 

merce  with  tyrannical  exactions.  To  reward  her  courtiers  and 
favorites  she  issued  letters  patent  granting  monopolies  of 
trade  to  divers  persons  in  a  great  number  of  articles,  including 
salt,  starch,  potash,  vinegar,  lead,  steel,  coal,  iron,  glass,  paper, 
tin,  sulphur,  calf  skins,  brushes,  pots,  bottles  and  a  great  num- 
ber of  other  articles.  This  resulted  of  course  in  the  grossest 
extortion  by  the  monopolists  and  the  greatest  hardship  to  the 
general  public.  For  the  purpose  of  enforcing  their  monopo- 
lies the  patentees  were  given  extraordinary  powers  of  search 
and  seizure,  which  enabled  them  to  act  with  the  utmost  op- 
pression. Though  there  was  very  little  of  law  or  justice  for 
the  common  man,  there  had  grown  up  a  general  disposition 
to  submit  to  authority  and  to  respect  the  judgments  of  the 
courts,  no  matter  how  oppressive.  The  Spanish  war  pro- 
foundly stimulated  the  patriotic  sentiment  and  feeling  of 
national  unity.  For  the  treatment  of  all  disputes  and  dealings 
with  foreign  countries  the  Queen's  government  possessed  the 
full  confidence  of  the  country  and  was  therefore  at  the  head 
of  the  whole  public  force  of  the  nation.  At  home  the  power 
of  the  nobility,  who  in  times  past  had  provoked  so  many  civil 
wars,  was  broken,  and  while  rank  injustice  lay  at  the  founda- 
tion of  the  whole  system,  there  was  better  order,  greater  in- 
dustry and  more  prosperity  than  before.  Elizabeth  did  not 
summon  parliament  frequently,  yet  there  was  much  legislative 
activity  in  spite  of  her  vigorous  and  haughty  assertion  of  her 
prerogative.  The  early  statutes  of  her  time  are  notable  for 
their  verbosity.  There  was  a  long  one  regulating  with  great 
particularity  artificers,  laborers,  servants  and  apprentices,  and 
one,  ostensibly  for  the  maintenance  of  the  navy,  but  really 
regulating  the  use  of  fish  and  meat  and  the  exportation  and 
importation  of  various  commodities.  The  spirit  of  the  time 
found  expression  in  the  many  criminal  statutes,  among  which 
were  acts  punishing  perjury,  embezzlement,  coin-clipping  (de- 
clared treason)  forging,  fantastical  prophesies,  buggery,  vaga- 
bonds calling  themselves  Egyptians  (punished  with  death), 
unlawful  taking  of  fish,  deer  or  hawks,  counterfeiting  foreign 
coin,  bastardy,  rape,  burglary  and  horse-stealing;  and  making 
wandering   persons   pretending   to   be    soldiers    or   mariners. 


7i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

felons  without  benefit  of  clergy.  There  were  numerous  acts 
relating  to  procedure  in  the  courts,  among  which  was  the 
statute  of  jeofails,  relieving  suitors  from  some  of  that  extreme 
technicality,  which  the  courts  had  observed  with  reference  to 
pleadings  and  writs.  Religion  came  in  for  its  full  share,  and 
the  effort  to  compel  uniformity  of  religious  thought  and  ob- 
servance was  continued  with  severe  penalties  for  violations  of 
the  acts.  More  liberal  in  tendency  were  acts  relating  to  the 
transfer  of  lands  by  deed  of  bargain  and  sale  and  fines  and 
common  recoveries,  and  with  reference  to  fraudulent  deeds 
and  conveyances.  It  seems  to  have  been  thought  necessary  to 
regulate  everything  by  law,  and  numerous  acts,  regulating  the 
manufacture  of  cloth,  of  hats,  caps  and  various  articles  and 
the  measurement  of  wood  sold  for  fuel,  were  passed.  There 
were  laws  enacted  for  the  collection  of  debts  from  receivers 
of  public  money,  relating  to  bankrupts,  usury,  sewers,  navi- 
gation, and  a  number  of  them  relating  to  repairs  of  highways. 
The  exportation  of  various  articles,  especially  sheep  and  pelts, 
was  prohibited.  The  two  great  universities  of  Oxford  and 
Cambridge  were  incorporated  by  act  of  parliament,  and  au- 
thority was  given  for  the  establishment  of  hospitals  or  abid- 
ing and  working  houses  for  the  poor.  The  erection  of  iron 
mills  within  twenty-two  miles  of  London  was  prohibited,  as 
was  that  of  a  cottage  with  less  than  four  acres  of  ground,  if 
built  outside  a  city  or  town.  Some  thought  of  the  public  wel- 
fare was  exhibited  in  an  act  for  the  relief  of  the  poor,  one  to 
reclaim  marsh  lands,  one  creating  a  special  court  for  insurance 
causes,  and  another  to  prevent  extortion  by  sheriffs  and 
bailiffs. 

In  1600  the  Queen  granted  the  first  charter  to  the  East 
India  Company  with  a  capital  stock  of  £72,000,  which  made 
a  successful  venture  with  four  ships.  In  1582  the  number  of 
seamen  in  England  is  given  at  14,295,  and  of  ships  1,232,  of 
which  217  only  were  of  over  eighty  tons.  The  process  of 
emancipation  from  the  ancient  personal  slavery  during  this 
reign  reached  its  end,  and  after  Elizabeth's  time  there  were 
no  more  slaves,  though  the  system  of  land  tenure  left  many 
in  a  condition  verv  little  removed  from  servitude. 


THE  BRITISH  EMPIRE  ^  717 

On  the  death  of  Elizabeth  the  crown  passed  to  James,  King 
of  Scotland,  thus  uniting  the  two  countries,  so  long  intensely 
hostile  to  each  other,  under  the  same  monarch.  Though  the 
title  of  James  was  very  generally  and  cordially  acknowledged, 
the  fact  that  he  came  from  Scotland  contributed  somewhat  to 
the  growth  of  that  spirit  of  freedom  in  the  House  of  Com- 
mons, which  was  manifested  in  his  time.  In  prior  reigns  at- 
tendance in  parliament  had  been  regarded  rather  as  a 
burdensome  duty  than  a  privilege.  Returns  of  elections  were 
made  to  the  chancellor,  who  assumed  the  right  to  decide  who 
were  elected.  A  controversy  having  arisen  over  the  right  of 
Sir  John  Fortesque,  who  had  been  outlawed,  to  sit  in  the 
house  by  virtue  of  an  election,  the  house  asserted  its  right  to 
determine  the  question  and  reversed  the  chancellor's^  decree 
excluding  him.  At  the  King's  suggestion  the  House  of  Lords 
asked  a  conference  on  the  subject,  but  the  commons  absolutely 
refused  and  asserted  that  the  question  was  solely  of  their  own 
privileges.  In  another  instance  they  established  their  right 
to  punish  any  persons  causing  the  arrest  of  members  of  the 
house,  including  the  officer  making  the  arrest.  In  1605  the 
great  Jesuit  plot,  to  blow  up  the  parliament  house  with  gun- 
powder at  the  opening  of  parliament  and  thus  destroy  the 
King  and  members,  culminated  in  discovery  and  the  arrest, 
trial  and  execution  of  a  number  of  persons  implicated.  The 
King  inclined  to  leniency  and  checked  rather  than  encouraged 
numerous  prosecutions.  The  spirit  of  independence  and  im- 
portance continued  to  grow  in  the  house,  and  in  1607  the 
commons  for  the  first  time  began  keeping  a  regular  journal 
of  their  proceedings.  The  boldest  and  best  act  passed  during 
the  whole  reign  was  Ch.  3,  21  James  I,  by  which  all  grants 
of  monopolies  by  patent  or  otherwise  were  condemned  and  de- 
clared "utterly  void  and  of  no  effect  and  in  no  wise  to  be  put . 
in  ure  or  execution."  An  exception  however  was  made  in 
favor  of  inventors,  to  whom  patents  for  monopolies  of  their 
inventions  for  twenty-one  years  were  allowed.  It  is  also 
noticeable  that  further  exceptions  were  made  in  favor  of  cer- 
tain individuals,  who  had  sufficient  influence  to  control  parlia- 
ment.    Corporate  charters,  not  onlv  to  cities  and  towns  but 


7i8  EVOLUTION  OF  GOVERXMEXTS  AXD  LAWS 

also  to  crafts,  fellowships,  manufacturing  and  trading  com- 
panies, were  also  allowed  with  special  privileges  and  rights  of 
monopoly.  There  was  during  this  reign  much  legislation  re- 
lating to  courts,  some  of  which  tended  to  diminish  and  some  to 
increase  the  abuses  committed  in  the  name  of  law,  and  there 
were  further  acts  to  regulate  religious  opinions.  The  dis- 
covery of  the  new  world  and  the  far  east  occasioned  claims 
of  sovereignty  by  European  kings  over  distant  lands.  For 
the  adjustment  of  these  claims  the  Spaniards  and  Portuguese 
applied  to  the  Pope,  who  in  the  plenitude  of  his  pretensions 
granted  the  east  to  the  Portuguese  and  the  west  to  the  Span- 
iards with  a  reservation  of  his  spiritual  mastery  over  all. 
Against  this  sweeping  claim  the  English,  Dutch  and  other 
Protestant  nations  claimed  sovereignty  over  such  parts  of  the 
world  as  were  first  discovered  by  any 'of  the  nation.  During^ 
James'  reign  the  first  permanent  settlements  in  America  were 
made.  The  East  India  Company  received  a  new  patent  and 
increased  its  capital  stock  to  £1,500,000.  Factories  for  trad- 
ing were  established  and  conflicts  with  the  Dutch  traders 
began,  notwithstanding  the  political  alliance  of  the  two  coun- 
tries. Trade  increased  and  from  Christmas  161 2  to  Christ- 
mas 1 61 3  we  are  told  that  exports  were  £2,487,435  and  im- 
ports £2,141,151.  This  was  the  age  of  those  literary  and 
intellectual  prodigies,  Shakespeare  and  Bacon,  the  latter  a 
strange  combination  of  moral  obliquity  and  brilliant  intellect- 
uality, to  whom  some  give  the  credit  of  completely  revolution- 
izing the  system  of  reasoning  and  methods  of  investigation 
in  all  scientific  researches.  The  reign  of  James  is  generally 
characterized  as  weak  and  inglorious,  but  it  was  one  of  real 
progress,  and  though  not  a  strong  man,  he  was  not  so  bad  at 
heart  as  most  of  his  predecessors,  and  gave  the  awakening 
forces  in  his  kingdom  a  better  chance  to  grow.  He  loved 
peace  better  than  war,  and  though  he  did  not  entirely  avoid 
bloody  conflicts  with  other  nations,  his  wars  were  of  minor 
importance.  The  Puritans  grew^  in  number  and  in  influence 
in  Parliament  and  were  leaders  in  asserting  its  independence. 
When  the  eflFects  of  educational  influences  on  the  efficiency 
and  usefulness  of  srovernments  and  governmental  agencies 


THE  BRITISH  EMPIRE  719 

are  fairly  understood,  we  shall  have  made  great  progress  in 
the  science  of  social  organization.  No  period  better  illustrates 
the  potency  of  such  influences  than  that  of  the  reign  of 
Charles  I  1625  to  1649.  ^^  his  father  James  was  less  of  a 
tyrant  than  his  predecessors,  so  Charles  was  even  a  more  mild 
and  far  less  absolute  ruler  than  his  father,  yet  influences  were 
at  work  on  the  public  mind  which  caused  him  to  be  con- 
demned to  death  for  his  despotic  acts.  Magna  Charta  had 
ceased  to  be  read  or  remembered  through  the  despotic  reigns 
of  Henry  VII,  and  his  successors  down  to  James.  Its  forms 
were  observed  in  some  particulars,  but  its  spirit  was  utterly 
ignored.  When  Henry  VIII  threw  off  the  domination  of  the 
Pope  and  took  on  himself  the  title  of  head  of  the  church  in 
England,  he  laid  the  foundation  for  that  religious  struggle 
between  the  reformers  and  the  crown,  which  culminated  in  the 
reign  of  Charles.  In  the  Catholic  states  of  Europe  the  re- 
formers attacked  the  papal  authority,  primarily  for  its  own 
abuses,  without  entering  on  any  inquiry  into  the  grounds  for 
the  king's  temporal  power.  Hostility  to  kings  was  often 
manifested  because  of  the  support  given  to  the  Church  of 
Rome,  but  this  hostility  led  to  little  or  no  inquiry  into  the 
rights  of  temporal  rulers  in  purely  temporal  matters.  In 
England  however  the  kings,  having  successfully  resisted  the 
Pope  and  established  the  independence  of  the  state  in  ecclesi- 
astical matters,  turned  their  attention  to  the  enforcement  of 
their  own  creeds  and  ceremonials  on  the  people.  The  spirit 
of  the  Reformation  was  a  spirit  of  inquiry  after  religious 
truth.  During  prior  centuries  the  multitude,  following  the 
temporal  rulers  who  were  almost  as  ignorant  and  bigoted  as 
themselves,  had  been  content  to  receive  their  religion  in  such 
form  as  it  was  given  to  them  by  the  priesthood.  The  reform- 
ers sought  a  purer  source  of  instruction  in  the  Bible,  on  which . 
the  church  claimed  to  found  its  authority.  They  did  not  seek 
truth  in  the  open  and  accept  it  on  its  own  credit,  but  assumed 
that  all  of  religious  truth  that  had  been  revealed  to  man  was 
contained  in  the  one  book.  The  reformers,  especially  the 
Puritans,  were  most  earnest  and  zealous  students  of  the  Bible, 
and   sought  to  conform  their  lives  rigidly  to  its  teachings. 


720  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

They  found  that  there  was  Httle  that  was  common  in  the 
simple  purity  of  Christ  and  the  elaborate  ceremonial  of  the 
Roman  Church.  They  therefore  became  bitterly  hostile  to  the 
images,  the  genuflections,  and  pomp  of  the  cathedral,  and 
insisted  on  a  simple,  austere  form  of  devotion.  It  was  the 
misfortune  of  Charles  in  1633  to  place  at  the  head  of  the 
religious  establishment,  as  archbishop  of  Canterbury,  Wil- 
liam Laud,  and  commission  him  to  reduce  the  English 
Churches  to  a  complete  uniformity  of  ceremonial.  It  was 
yet  more  unfortunate  that  Laud  was  devotedly  attached  to  the 
forms  of  religion  and  insisted  on  a  most  elaborate  ceremonial 
and  the  use  of  all  those  symbols  and  postures,  which  were  so 
obnoxious  to  the  Puritians.  These  he  undertook  to  enforce 
by  virtue  of  the  authority  he  held  under  the  King.  This 
naturally  led  to  an  inquiry  into  the  right  of  the  King  to  dic- 
tate and  enforce  a  mode  of  worship  which  the  Puritans 
found  to  be  utterly  at  variance  with  the  simple  beauties  of  the 
life  of  Christ.  It  was  not  far  to  pass  from  an  inquiry  into 
the  spiritual  authority  of  the  king  to  one  into  the  basis  of 
his  temporal  power,  and  Magna  Charta  afforded  a  basis  of 
challenge  of  the  king's  right  to  levy  arbitrary  taxes.  We 
have  seen  that  in  James'  time  the  commons  under  the  lead  of 
the  Puritans  began  to  assert  their  independence  and  authority 
with  a  spirit  never  before  shown.  Charles  found  his  first 
parliament  disposed  to  advance  rather  than  abate  its  claims. 
To  his  call  for  money  to  carry  on  the  war  to  recover  the 
Palatinate  for  his  brother-in-law,  the  elector,  the  House  of 
Commons  responded,  that  it  had  no  confidence  in  Bucking- 
ham, whose  counsel  Charles  followed,  and  asked  that  before 
they  granted  a  further  supply  than  the  very  small  one  they 
had  already  voted,  the  King  would  name  counsellors  whom 
they  could  trust.  Charles  answered  by  dissolving  parliament, 
but  not  till  after  an  act  had  been  passed  for  the  observance 
of  Sunday,  a  point  very  much  insisted  on  by  the  Puritans, 
and  to  restrain  tippling  in  inns.  A  second  parliament  was 
summoned,  which  convened  March  17,  1627,  with  the  same 
element  still  dominant  in  the  House  of  Commons,  notwith- 
standing the  efforts  of  the  King  to  obtain  a  majority  favor- 


THE  BRITISH  EMPIRE  721 

able  to  his  views.  The  first  act  done  was  the  formulation  of 
a  petition  "concerning  divers  rights  and  liberties  of  the  sub- 
jects," in  which  they  recited  violations  of  Magna  Charta  and 
of  numerous  statutes  for  the  protection  of  the  citizens  against 
arbitrary  power,  and  complained  especially  of  arbitrary  levies 
of  taxes  and  contributions  by  the  King  without  the  authority 
of  parliament;  of  arbitrary  arrests  and  imprisonments  and 
denials  of  the  writ  of  habeas  corpus  where  arrests  were  at  the 
King's  command;  of  summary  convictions  and  executions 
without  due  trial,  by  commissioners  exercising  extraordinary 
powers ;  of  the  quartering  of  soldiers  on  private  citizens  con- 
trary to  law;  and  of  other  denials  of  justice,  and  concluding 
with  a  prayer,  "That  in  the  things  aforesaid  all  your  officers 
and  ministers  shall  serve  you  according  to  the  laws  and  sta- 
tutes of  this  realm."  To  this  petition  the  King  graciously  re- 
sponded in  full  parliament,  ''Soit  droit  fait  come  est  desire." 
Let  right  be  done  as  is  desired.  This  was  followed  by  an- 
other act  for  the  observance  of  Sunday.  Nothing  could  bet- 
ter evidence  the  tendency  of  the  human  mind  to  cling  to  mere 
form  and  outward  show  than  this  and  kindred  acts.  Pro- 
fessedly in  the  interest  of  religion,  it  had  no  substantial  bear- 
ing on  the  observances  of  the  duty  of  man  to  man,  which 
after  all  is  the  way  in  which  obedience  to  divine  law  can  be 
shown.  Another  act  prohibited  the  sending  of  children  be- 
yond the  seas  to  be  educated  in  popish  doctrines.  Attacks  on 
the  favorite  Buckingham  continued,  and  the  commons  sought 
to  impeach  him.  Charles,  finding  parliament  so  intractable, 
dissolved  it,  but  further  grants  of  funds  being  necessary  to 
carry  on  his  foreign  wars  he  summoned  another,  which  met  in 
1629  after  Buckingham  had  been  murdered.  During  the  in- 
terval between  the  second  and  third  parliaments  the  King 
had  proceeded  in  the  old  way  to  collect  taxes  and  otherwise 
continue  the  grievances  complained  of  in  the  petition  of  rights. 
When  parliament  assembled  complaints  were  at  once  renewed 
with  increased  emphasis,  and  the  King  to  be  rid  of  it  dissolved 
the  parliament  without  any  act  being  passed.  He  then  un- 
dertook to  rule  without  a  parliament,  and  it  was  eleven  years 
till  the  next  one  convened.     During  this  time  he  went  on  in 


722  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the    old   way,    exercising   arbitrary   powers    under    claim    of 
right  by  virtue  of  his  royal  prerogative.     Though  he  was  far 
less  arbitrary  and  tyrannical  than  either  Henry  VIII  or  Eliza- 
beth had  been,  the  state  of  the  public  mind  had  become  such, 
that  acts,  which  attracted  little  attention  and  met  with  no 
resistance  during  those  reigns,  called  forth  the  most  vigor- 
ous protests  and  were  generally  condemned  when  perpetrated 
by  his  authority.     The  court  of  Star  Chamber;  which  was 
established  in  the  third  Henry  the  VII  as  a  court  made  up 
of  the  chancellor,  lord  treasurer,  and  keeper  of  the  privy  seal 
or  two  of  them  with  a  bishop,  a  lord  of  the  council  and  the 
two  chief  justices  of  the  King's  Bench  and  Common  Pleas,  for 
the  trial  of  specified  cases;  had  greatly  extended  and  abused 
its  powers  by  condemning  persons  secretly,  without  allowing 
a  jury  trial,   and  therefore  was  very  obnoxious.     Another 
court,  called  that  of   High  Commission,  which  exercised  a 
similar  arbitrary  authority  in  ecclesiastical  matters  and  the 
power  of  punishing  offenders  charged  with  heresy  and  other 
offenses    of    a    religious    character,    was    equally    unpopular. 
When  Charles  finally  yielded  to  necessity  and  summoned  a 
parliament  in  1640,  the  first  business  undertaken  was  an  at- 
tack on  Strafford  his  chief  minister.     The  Protestant  Scots 
were  in  open  rebellion  against  the  efforts  of  archbishop  Laud 
to  impose  his  system  of  formal  worship,  and  the  majority  of 
the   Parliament  were   in   sympathy  with   the   Scotch   rebels. 
Thus  the  peculiar  spectacle  was  presented,  of  a  British  Parlia- 
ment backed  by  a  Scotch  army  in  its  controversy  with  the 
King.      Finding   Parliament   far  more   intent   on   redressing 
public  grievances  than  on  granting  him  supplies  or  upholding 
his  authority,  the  King  hastily  dissolved  it.     He   found  it 
necessary,   however,   to   soon   summon   another,   which   con- 
vened on  Nov.  3,  1640,  and  is  known  in  history  as  the  Long 
Parliament.     It  began  by  pushing  the  impeachment  of  Straf- 
ford and  caused  him  to  be  condemned  and  beheaded.     After 
the  passage  of  some  acts  of  minor  importance,  by  Ch.  10-16 
Charles  I  the  Court  of  Star  Chamber,  which  had  become  so 
hateful,  was  abolished,  and  by  Ch.   11   of  the  same  session 
the  court  of  High  Commission  was  also  put  out  of  existence. 


THE  BRITISH  EMPIRE  ']2Z 

Chapter  twenty  prohibits  the  summoning  of  persons  to  take 
the  order  of  knighthood,  by  which  great  extortions  had  been 
practiced  by  the  King.  By  these  acts  the  most  potent  instru- 
ments of  arbitrary  power  were  destroyed  with  the  concur- 
rence of  Charles.  Prior  to  that  time  all  the  judges  had  held 
office  during  the  pleasure  of  the  king  and  were  his  chief 
instruments  of  oppression,  both  in  taking  the  lives  of  those 
he  wished  to  destroy  and  in  robbing  people  of  their  property 
through  judgments  rendered  in  the  name  of  law.  At  the 
request  of  parliament  all  the  judges  were  given  new  patents 
to  hold  office  during  good  behavior,  thus  rendering  them  to 
some  extent  independent  of  the  King.  A  rebellion  of  the 
Irish,  who  still  adhered  to  the  Catholic  faith,  was  attended 
with  great  barbarities  on  their  part,  resulting  largely  from 
religious  zeal.  Parliament  was  more  intent  on  remedying 
grievances  than  on  subduing  the  Irish  rebellion.  A  commit- 
tee appointed  for  that  purpose  brought  in  a  remonstrance 
against  many  abuses,  which  was  published  and  vehemently 
discussed  throughout  the  nation.  The  King  published  an 
answer  to  it.  The  Commons  sought  to  limit  the  King's  power 
by  numerous  restrictions  and  declared  that  the  interposition 
of  the  Peers  in  the  election  of  members  of  the  House  of 
Commons  was  a  breach  of  its  privileges.  A  majority  of  the 
Peers  sided  with  the  King,  and  the  two  houses  could  not  agree 
on  legislation.  The  clear  preception  of  a  multitude  of  abuses 
of  governmental  powers,  which  the  sovereigns  had  long  been 
accustomed  to  exercise,  and  the  free  discussion  of  them,  led 
at  once  to  a  remarkable  ferment  of  the  public.  Hatred  of 
ecclesiastical  usurpation  could  only  find  full  expression 
coupled  with  hatred  of  civil  tyranny.  An  abuse  of  power 
was  seen  to  be  an  abuse  whether  under  the  guise  of  spiritual 
or  temporal  government.  The  pent  up  protests  against  the 
oppression  of  ages  burst  forth  in  all  its  gathered  force,  and 
the  democratic  spirit  daily  gained  in  strength  and  boldness. 
The  King  was  slow  to  realize  the  force  of  the  current  and, 
when  he  did,  he  took  rash  measures  to  check  it  by  causing 
a  charge  of  treason  to  be  lodged  in  the  House  of  Lords 
against  Lord  Kimbolton  and  five  of  the  leading  members  of 


724  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  House  of  Commons.  A  sergeant  at  arms  in  the  King's 
name  demanded  the  five  members  from  the  house,  but  the 
house  asserted  their  privilege  from  arrest.  The  King  then 
went  in  person  to  the  house  and  demanded  them,  but  as  they 
were  not  present  he  got  no  answer.  The  excitement  con~ 
tinned,  and  the  claim  of  Privilege  of  Parliament  suddenly 
grew  into  one  of  vast  and  continuing  importance.  The  multi- 
tude sided  with  the  House,  and  the  King  found  himself 
without  support.  Not  only  the  men  but  the  women  also 
joined  in  tumultuous  denunciation  of  the  Papists  and  in 
support  of  the  Commons.  The  King  retired  to  York  and 
refused  his  assent  to  the  acts  of  Parliament.  The  leaders 
formulated  their  demands  and  submitted  them  to  the  King, 
by  which  they  sought  to  place  the  executive  power  in  a  min- 
istry responsible  to  parliament,  to  secure  the  judges  against 
the  influence  of  the  King,  and  wreak  vengeance  on  the 
Catholics.  The  King,  perceiving  that  the  real  purpose  of 
Parliament  was  to  effectually  curtail  his  power,  refused  to 
make  further  concessions.  Both  sides  prepared  to  use  force 
and  civil  war  ensued.  The  advantage  was  generally  on  the 
side  of  the  King  in  the  first  stages  of  the  conflict,  but  at  the 
hard  fought  battle  of  Marston  Moor  the  parliamentary  forces 
under  Cromwell  gained  a  great  victory.  Attempts  were  made 
to  come  to  a  settlement  of  the  controversy,  but  no  basis  of 
accommodation  could  be  agreed  on,  and  the  Commons  found 
time  to  proceed  with  the  impeachment  of  Archbishop  Laud 
whom  they  caused  to  be  condemned  to  death  by  the  vote  of  a 
shadow  of  the  House  of  Lords,  seven  only  of  whom  voted  on 
the  final  decision.  At  Naseby  the  King  met  with  a  defeat 
which  proved  decisive  of  the  war,  and  from  that  time  on  the 
success  of  the  parliamentary  forces  was  continued,  until  the 
King  adopted  the  desperate  expedient  of  delivering  himself 
up  to  the  Scotch  forces,  then  assembled  near  London.  After 
much  negotiation  the  demand  of  the  Scots  of  pay  for  their 
troops  was  acceded  to  by  Parliament  and  £400,000  was  agreed 
to  be  paid.  Thereupon  the  King  was  delivered  to  commis- 
sioners appointed  by  Parliament.  Then  followed  the  usual 
difliculty  ensuing  after  a   civil   war,   the   disposition   of  the 


THE  BRITISH  EMPIRE  725 

victorious  army,  clamorous  for  arrears  of  pay,  and  which 
Parliament  desired  to  disband.  Cromwell  now  shaped  events. 
He  first  seized  the  person  of  the  King  and  became  the  cham- 
pion of  the  cause  of  the  soldiers,  at  whose  head  he  assumed 
authority.  Dissensions  had  grown  up  between  Presbyterians 
and  Independents,  in  the  House  and  out  of  it.  Cromwell 
placed  his  dependence  on  the  army.  The  King  had  the  in- 
discretion to  attempt  escape  from  Hampton  Court,  where  he 
was  detained,  but  fell  into  the  hands  of  Hammond,  governor 
of  the  Isle  of  Wight,  a  devoted  adherent  of  Cromwell.  Va- 
rious uprisings  occurring  in  England  and  Scotland,  Cromwell 
at  the  head  of  the  army  proceeded  to  restore  order  by  the 
strong  hand  of  military  power.  While  he  was  thus  engaged, 
the  Parliament  attempted  to  act  independently  and  make  a 
settlement  with  the  King,  by  which  the  monarchy  would  be 
restored  with  limitations  of  power  dictated  by  Parliament. 
Cromwell,  having  crushed  opposition  without,  proceeded  to 
enforce  his  mastery  on  the  Parliament  by  purging  it,  i.e.  ex- 
cluding from  its  sittings  the  Presbyterian  members  who  op- 
posed him.  The  remaining  members  then  proceeded  with  a 
high  hand  and  having  wholly  ignored  the  lords,  whom  they 
could  no  longer  control,  they  charged  the  King  with  treason 
and  organized  a  court  of  133  members,  named  by  the  Com- 
mons, to  try  him.  The  twelve  judges  were  at  first  appoined 
among  the  number,  but  as  they  denied  that  the  King  could  be 
tried  for  treason,  they  were  left  off  the  list.  Like  many  other 
courts  organized  to  take  men's  lives,  it  condemned  the  King, 
contrary  to  all  established  doctrines  of  English  law,  and  he 
was  executed.  Other  persons  obnoxious  to  the  dominant 
power  in  parliament  were  tried  by  a  newly  organized  court 
and  condemned  to  deoth.  In  the  exercise  of  their  newly  ac- 
quired power  Cromwell  and  his  followers  pursued  substan- 
tially the  same  tyrannical  methods  that  had  been  followed  by 
the  kings,  and  sentenced  men  to  death  by  court  martial  and 
other  judgments,  when  it  suited  their  convenience  to  do  §0. 
In  levying  taxes  they  raised  far  greater  sums  than  any  king 
had  ever  obtained  with  or  without  the  concurrence  of  Parlia- 
ment, and  much  by  methods  as  irregular  as  any  of  which 


726  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

they  had  complained  so  loudly.  Nothing  could  better  illu- 
strate the  proneness  of  men  intrusted  with  power  and  re- 
strained by  no  effectual  check  to  abuse  it.  The  Parliament 
having  killed  the  King  assumed  full  governing  power  and 
under  Cromwell's  guidance  exhibited  remarkable  vigor.  Not 
only  were  all  the  adherents  of  the  king  in  England  forced  to 
submit,  but  Ireland  was  reduced  after  a  barbarous  warfare,  in 
which  many  people  were  ruthlessly  slaughtered  and  refused 
quarter  after  defeat.  The  Scotch  having  refused  to  submit 
to  the  British  rule  and  invited  Charles  II  to  take  the  throne 
on  most  humiliating  conditions,  war  was  waged  against  them 
till  Charles  after  many  adventures  by  the  aid  of  loyal  friends 
escaped  through  England  to  Normandy.  Scotland  was  re- 
duced to  submission,  and  war  was  then  waged  on  the  sea 
against  the  Dutch  w^ith  varying  success.  The  Parliament 
having  shifted  attention  from  the  achievements  of  the  army 
to  those  of  the  navy,  and  having  determined  to  reduce  the 
land  forces,  Cromwell  backed  by  his  grenadiers  entered  the 
house  of  parliament,  ordered  its  members  to  disperse  and  de- 
clared it  dissolved.  Soon  afterward  he  convened  a  body  of 
128  persons,  designated  by  himself  from  England,  Scotland 
and  Ireland,  to  whom  he  entrusted  all  powers  of  state,  but  he 
soon  dismissed  them  after  their  having  by  a  formal  deed  of 
assignment  restored  the  supreme  power  into  his  hands.  A 
council  of  army  officers  then  bestowed  on  Cromwell  the  title 
of  Protector  and  prepared  what  was  termed  "the  instrument 
of  government,"  which  provided  for  a  council  of  not  more 
than  twenty-one  or  less  than  thirteen  to  hold  during  good 
behavior.  The  Protector  was  given  full  executive  powers, 
and  he  was  to  summon  a  parliament  every  three  years  and 
allow  them  to  sit  five  months.  A  standing  army  of  20,000 
foot  and  10,000  horse  was  established.  The  war  with  the 
Dutch  resulted  in  further  successes  for  the  British,  and  a 
peace  was  concluded  on  favorable  terms.  Cromwell  then 
summoned  a  parliament,  chosen  at  an  election  at  which  the 
franchise  was  restricted  to  those  having  estates  of  £200  value, 
of  400  members  from  England,  thirty  from  Scotland  and 
thirty  from  Ireland.     After  a  session  in  which  all  the  articles 


THE  BRITISH  EMPIRE  72^ 

of  Cromwell's  g-overnmental  scheme  were  discussed  with  great 
freedom,  he  became  disgusted  and  dissolved  the  parliament. 
Another  was  summoned  in  which  he  secured  a  favorable 
majority  by  excluding  many  of  those  chosen  who  were  op- 
posed to  him.  This  Parliament  proposed  to  make  him  King, 
and  he  was  very  desirous  of  accepting,  but  such  had  been  the 
force  of  his  own  teachings,  that  the  army,  on  which  he  had 
at  all  times  relied,  would  not  consent  to  it;  nor  would  the 
members  of  his  own  family  consent,  and  he  felt  forced  to 
decline.  In  1658  Cromwell  died,  having  ruled  the  three  king- 
doms with  more  vigor  and  achieved  more  success  on  the  sea 
than  any  of  the  so-called  legitimate  rulers  who  had  preceded 
him,  without  any  settled  system  of  government  or  recognized 
basis  for  his  authority.  He  in  fact  gained  general  respect  for 
his  abilities  and  knew  how  to  control  an  army,  ever  the  surest 
support  of  despotic  power.  The  judges  he  chose  to  adminis- 
ter the  law  are  given  credit  for  integrity  and  impartiality, 
virtues  little  known  by  their  predecessors.  The  system  of 
government  administered  was  not  a  very  radical  change  from 
that  to  which  the  people  were  accustomed.  That  part  which 
always  comes  nearest  the  people,  the  courts,  was  a  continua- 
tion of  the  old  system  with  the  most  obnoxious  tribunals, 
namely  the  Star  Chamber  and  High  Commission,  eliminated, 
and  with  judges  of  more  integrity  and  juries  of  far  more  inde- 
pendence. Parliament  had  always  been  regarded  as  an  in- 
stitution of  the  government,  representative  of  the  people. 
The  great  change  was  in  the  exaltation  of  its  prerogatives  and 
power,  but  even  as  to  this  the  real  power  was  still  wielded 
mainly  by  Cromwell,  styled  protector,  rather  than  king.  By 
the  religious  agitation  and  the  teachings  of  the  Protestant 
preachers  the  multitude  had  been  educated  to  deny  the  right 
of  any  human  authority  to  dictate  forms  of  worship,  and  the 
questioning  of  the  right  of  the  king  to  take  his  subjects'  lives 
or  property  followed  almost  as  a  necessary  corollary.  Crom- 
well's rule,  though  tainted  with  many  moral  blemishes,  was 
in  all  essential  points  an  advance  and  improvement  on  what 
had  preceded  it.  He  was  placed  at  the  head  of  the  state,  not 
from  the  accident  of  birth  but  by  capacity  to  organize  and 


728  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

rule.  Parliament  became  a  living  force,  exhibiting  the  in- 
tellectual power  and  impulses  of  many  vigorous  minds,  in- 
stead of  being  a  mere  instrument  of  the  king's  will.  Judges 
began  to  think  of  doing  justice  instead  of  seeking  merely 
their  own  advancement  by  subserviency  to  the  king.  The 
House  of  Lords,  which  since  the  beginning  of  the  war  of  the 
roses  had  been  always  filled  with  favorites  and  dependents  of 
the  king,  faded  into  nothingness  in  a  time  when  the  founda- 
tion of  their  claims  to  power  was  scrutinized.  Cromwell's 
great  capacity  was  exhibited  more  strongly  in  the  organization 
of  the  army  and  in  the  efficiency  of  his  administration  of 
civil  affairs  than  in  the  destruction  of  ancient  abuses.  Effi- 
ciency of  organization  is  equally  essential  in  every  form  of 
government.  Co5peration  for  the  accomplishment  of  com- 
mon ends  is  essential  to  all  great  achievements,  and  this  im- 
plies, either  that  the  multitude  must  follow  the  dictates  of  a 
leader,  or  must  move  in  concert  in  accordance  with  estab- 
lished rules  thoroughly  comprehended  by  each  so  far  as  his 
conduct  is  affected.  The  former  is  the  simpler  combination, 
the  latter  the  more  advanced  and  efficient.  Cromwell  was  a 
despot,  who  resorted  to  educational  methods  in  the  exercise 
of  his  power,  as  all  great  leaders  necessarily  do.  He  taught 
the  soldiers  obedience  and  mutual  confidence.  He  taught  the 
citizens  obedience  to  law,  which  still  lived  on  though  the 
king's  head  was  off.  In  these  comments  doubtless  far  too 
much  is  attributed  to  Cromwell,  the  leader.  Many  men  of 
less  note  wielded  potent  influence  in  that  period  when  capa- 
city, rather  than  title,  made  leaders. 

On  the  death  of  Oliver  Cromwell  the  council  recognized 
his  son  Richard  as  his  successor.  A  new  parliament  was 
summoned  and  also  a  general  council  of  officers  of  the  army, 
but  discord  prevailed,  no  leader  having  either  the  ability  or 
the  authority  to  direct  the  councils  of  the  nation,  and  no 
common  tie  existing  of  sufficient  strength  to  induce  harmony. 
Parliament  was  dissolved  and  Richard's  authority  was  no 
longer  regarded.  Whatever  existed  of  governing  power  was 
in  the  council  of  state.  It  was  decided  by  them  that  the  Long 
Parliament,  which  had  been  dispersed  rather  than  dissolved 


THE  BRITISH  EMPIRE  729 

by  Cromwell,  should  be  reconvened,  and  about  seventy  of  its 
members  were  gathered  into  a  session  designated  as  the  Rump 
Parliament.  Charles  II  prepared  to  invade  the  kingdom  and 
assert  his  right,  and  the  royalists  everywhere  made  ready  to 
support  him.  The  rivalry  between  the  officers  of  the  army  and 
Parliament  increased,  till  it  reached  an  open  clash  of  author- 
ity, and  the  army  under  Lambert  forcibly  turned  the  members 
away,  when  they  attempted  to  meet  in  the  Parliament  House. 
General  Monk  having  succeeded  in  bringing  the  army  under 
his  command  from  Scotland  and  the  Parliament  having  recon- 
vened, it  finally  voted  its  own  dissolution  and  issued  writs  for 
the  election  of  a  new  one. 

The  elections  resulted  overwhelmingly  in  'favor  of  the 
loyalists.  Parliament  assembled  and  received  a  letter  from 
the  king,  in  which  he  promised  liberty  of  conscience,  recogni- 
tion of  the  authority  of  Parliament  in  certain  particulars,  pay 
for  the  army,  and  a  general  amnesty,  with  such  exceptions 
only  as  Parliament  should  make.  The  House  of  Lords  again 
convened,  the  King  was  solemnly  proclaimed  and  invited  to 
return  and  take  possession  of  the  government.  During  the 
protectorship  taxes  were  levied  in  the  form  of  monthly  dues, 
excise  and  customs.  In  1653  the  post  house  had  grown  to 
sufficient  importance  to  be  farmed  out  at  £10,000  a  year. 
The  Puritans,  to  escape  the  persecutions  of  Laud  in  the  time 
of  Charles,  had  emigrated  in  large  numbers  to  New  England, 
where  at  the  outbreak  of  the  civil  wars  they  were  estimated  to 
number  25,000.  Among  the  zealous  reformers  of  the  com- 
monwealth was  John  Milton,  whose  fame,  like  that  of  Shakes- 
peare, was  reserved  for  later  ages.  Charles  on  his  accession 
named  chief  officers,  who  were  generally  satisfactory  to  the 
people.  These  were  a  chancellor,  steward  of  the  household, 
high  treasurer  and  secretary  of  state.  As  the  king  had  been 
recognized  by  the  Parliament,  the  compliment  was  returned 
and  the  Parliament,  though  not  summoned  by  him,  received 
his  recognition  by  formal  act  of  Parliament.  (Ch.  i.  Charles 
II.)  All  judicial  acts  of  the  commonwealth  were  confirmed. 
Parliament  excepted  from  the  general  amnesty  those  who  had 
taken  an  immediate  part  in  the  execution  of  the  king,  and  six 


730.     EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  his  judges  were  tried  and  executed.  In  its  grant  of  ton- 
nage and  poundage  the  ParHament  fixed  the  rates  to  be 
charged  on  each  article  in  a  long  schedule  alphabetically  ar- 
ranged and  published  with  the  act,  thus  establishing  a  definite 
system  of  customs. 

The  spirit  of  independence,  which  had  dominated  the  Par- 
liament during  the  reign  of  Charles  I,  still  lived  under  Charles 
II,  notwithstanding  the  general  feeling  of  loyalty  to  the  king. 
The  disposition  to  freely  discuss  all  public  matters  in  the 
House  of  Commons  was  manifest  at  each  session.  The  king 
and  the  nobility  were  no  longer  the  sole  nor  even  the  main 
representatives  of  the  nation.  There  was  a  growing  public 
sentiment  among  classes  which  in  former  years  had  taken  no 
part  in  governmental  affairs.  Merchants,  farmers,  and  me- 
chanics, had  their  convictions  in  matters  of  religion,  and  were 
discussing  state  affairs.  The  attention  of  the  public  was  now 
ifairly  turned  toward  foreign  colonies  and  trade  abroad.  Ri- 
valry with  the  Dutch,  who  had  led  both  in  manufacturing  and 
ship  building,  brought  on  a  naval  conflict  for  the  mastery  of 
the  sea,  injurious  to  both  and  indecisive  in  result,  one  of  the 
consequences  of  which,  when  peace  was  made,  was  the  transfer 
of  New  York  to  the  British.  Though  there  was  so  much 
public  discussion  of  public  matters,  it  seems  surprising  that 
there  could  be  such  adherence  to  forms  in  the  trials  of  persons 
charged  with  offenses,  and  so  many  cruel  and  unjust  execu- 
tions by  judgments  of  courts.  The  virulence  of  religious 
prejudice  must  be  charged  with  most  of  it.  In  attempts  to 
enforce  the  acts  for  uniformity  of  worship  many  Scotch  and 
other  convenanters  and  noncomformists  were  cruelly  mur- 
dered. On  the  charge  of  a  popish  plot  to  kill  the  king  and 
reinstate  popery  many  distinguished  men  were  tried  and  con- 
demned on  the  testimony  of  vile  informers,  and  much  innocent 
blood  was  shed.  With  the  spirit  of  individuality  and  free- 
dom, which  had  become  so  prevalent,  there  was  a  fierceness 
and  brutality  of  a  peculiar  order,  which  perpetrated  monstrous 
injustice  in  strict  accordance  with  established  legal  forms. 
Here  and  there  glimmerings  of  light  appeared,  and  occasion- 
ally a  jury  acquitted  an  innocent  man,  but  harsh  and  bloody 


THE  BRITISH  EMPIRE  73^^ 

vengeance  on  those  charged  with  an  offense  seemed  to  accord 
best  with  the  fierce  spirit  of  the  age.  From  this  reign  the  or- 
ganization of  those  great  poHtical  parties  known  as  Tory  and 
Whig  dates,  the  former  attached  to  the  Crown,  the  latter 
asserting  the  rights  of  the  commons,  though  in  later  years 
divisions  have  occurred  of  a  wholly  different  character.  Frorn 
this  reign  also  dates  the  assertion  by  Parliament  of  the  right 
to  direct  the  application  of  public  moneys  and  be  informed  as 
to  the  use  actually  made  of  it.  The  independence  manifested 
by  the  commons  led  to  the  bribery  of  members  by  the  ministry 
in  order  to  carry  their  measures  through  Parliament.  This, 
though  bad,  was  a  better  condition  of  affairs  than  that  under 
the  kings  who  secured  the  passage  of  their  measures  by  intimi- 
dation and  constraint  of  members,  for  it  left  the  honest  ones 
still  free  to  act  and  to  speak.  In  levying  taxes  the  old  sys- 
tems were  largely  abandoned  and  new  expedients  adopted. 
Land  taxes  were  based  on  value  and  taxes  on  incomes,  bank- 
ers, money  and  stock  were  levied,  with  excise  taxes  and  duties 
on  imports.  The  first  Parliament  passed  an  act  declaratory  of 
a  policy  long  pursued.  It  is  entitled,  ''An  act  for  the  encour- 
agement and  increasing  of  shipping  and  navigation,"  and 
prohibits  the  importation  of  merchandise  from  the  colonies  in 
Asia,  Africa  and  America,  in  any  ships  but  such  as  belonged 
to  people  of  the  British  Isles,  under  penalty  of  forfeiture  of 
all  of  them,  and  excludes  aliens  from  dealing  as  merchants  or 
factors  in  the  plantations.  The  same  provisions  were  extend- 
ed to  importations  from  Russia  and  Turkey.  By  Ch.  24 
of  the  acts  of  the  first  session  the  court  of  wards  and  liverifes 
was  abolished,  and  the  feudal  incidents  to  land  tenure  of 
wardships,  liveries,  primer  seisins,  ousterlemanis  and  forfeit- 
ures by  marriage,  were  taken  away,  as  was  also  all  tenure  by 
knight  service,  and  all  tenures  thereafter  to  be  created  by  the 
king  were  required  to  be  in  free  and  common  socage.  Pur- 
veyances were  prohibited  and,  in  lieu  of  the  feudal  revenues 
which  had  been  enjoyed  by  the  king,  a  far  better  source  was 
provided  in  the  excise  taxes.  Chapter  thirty-five  provides  for 
the  establishment  of  a  post  office,  recites  that  several  public 
post  offices  have  been  heretofore  erected,  and  provides  for  the 


72>^  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

appointment  of  a  postmaster  general.  This  was  the  beginning 
in  England  of  that  great  postal  system,  which  is  now  world 
wide  and  has  become  the  most  economical  and  efficient  busi- 
ness establishment  ever  organized  by  man.  Among  the  other 
important  acts  passed  were  ones,  for  the  government  of  ships 
and  forces  at  sea;  for  regulating  corporations;  to  prevent  vex- 
atious arrests  and  delays  in  suits  at  law ;  against  the  Quakers ; 
regulating  the  militia;  requiring  uniformity  of  pubHc  prayers 
and  religious  ceremonies ;  to  prohibit  printing  seditious  pamph- 
lets, ect. ;  for  the  encouragement  of  trade ;  for  the  holding  of 
Parliaments  once  in  three  years  at  least ;  prohibiting  the  impor- 
tation of  cattle  from  Ireland ;  for  rebuilding  the  city  of  London 
(which  had  been  nearly  destroyed  by  fire)  ;  to  prevent  and 
suppress  seditious  conventicles;  to  prevent  the  planting  of 
tobacco  in  England  and  regulating  the  plantation  trade; 
against  popish  recusants;  for  the  prevention  of  frauds  and 
perjuries  (the  substance  of  this  act,  which  requires  certain 
contracts  to  be  in  writing,  has  been  reenacted  in  substantially 
all  English  speaking  states) ;  for  taking  away  the  writ  de 
heretico  comburendo ;  requiring  corpses  to  be  buried  in  wool- 
en, and  providing  the  writ  of  habeas  corpus  to  secure  the 
liberties  of  subjects.  Other  acts  relating  to  the  king's  reve- 
nue, and  restrictive  acts  arbitrarily  regulating  manufactures 
or  restricting  trade,  were  passed,  as  well  as  some  tending  to  a 
better  administration  of  justice.  It  is  to  be  observed  that  the 
best  acts  are  usually  either  those  repealing  an  existing  law,  or 
those  prohibiting  an  abuse  of  his  power  by  the  king.  Of  the 
beneficial  constructive  acts  that  creating  the  post-office  is  the 
most  notable,  the  others  are  of  more  dubious  value.  The 
marked  progress  of  the  nation  went  on,  partly  by  reason  of, 
but  more  in  spite  of  the  government.  Restrictive  acts  affect- 
ing trade  and  manufactures  were  passed  in  the  interests  of 
favored  persons  and  classes  but  the  spirit  of  the  nation  was 
sufficient  to  go  forward  in  spite  of  such  obstacles.  The  ca- 
pacity for  combination  and  cooperation  steadily  developed  in 
connection  with  the  building  of  ships  and  the  prosecution  of 
trade  and  manufactures.  Organizations  of  men  to  do  useful 
things  were  formed  outside  the  governmental  system  with 


THE  BRITISH  EMPIRE  yZZ 

little  assistance  from  it  and  often  in  spite  of  its  interference. 
In  these  fields  the  great  lords  and  landed  proprietors  had 
little  part,  but  the  landless  younger  sons  and  their  descendants 
and  the  more  humble  traders  and  artisans,  joining  in  gainful 
occupations,  promoted  (commerce  and  its  instrumentalities, 
and  thereby  made  manufacturing  on  a  larger  scale  practicable. 
It  is  of  the  nature  of  each  useful  and  productive  employment, 
that  an  exchange  of  products  with  those  engaged  in  other 
industries  is  essential  to  a  high  degree  of  prosperity,  while 
the  wars  of  kings  are  destructive  of  the  products  of  industry 
and  restrict  commerce.  Yet  through  jealousy  of  their  rivals 
in  trade  the  British  merchants  encouraged  war  with  Holland 
to  their  own  great  detriment,  and  the  inordinate  greed  of 
traders  has  often  since  sought  aid  from  the  destructive  agen- 
cies of  the  state. 

James  II  came  to  the  throne  with  an  unquestioned  title,  but 
distrusted  by  the  people  because  of  his  leaning  to  the  Catholic 
religion.  Though  at  first  received  with  a  strong  feeling  of 
loyalty,  he  was  wholly  wanting  in  tact  as  well  as  in  steadi- 
ness of  purpose.  He  not  only  offended  the  religious  preju- 
dices of  the  people  by  attending  mass,  in  violation  of  the  act 
of  Parliament  prohibiting  its  celebration,  but  placed  Catholics 
in  office  without  exacting  the  required  oath.  He  proclaimed 
toleration  of  all  religious  beliefs,  but  this  was  in  violation  of 
the  law,  and  as  it  was  believed  to  be  done  solely  in  the  interest 
of  the  Catholics,  though  applying  in  terms  to  the  persecuted 
dissenters,  it  offended  the  latter  as  well  as  the  adherents  of 
the  established  faith.  He  also  attempted  to  assert  a  preroga- 
tive right  to  taxes  without  a  grant  by  Parliament.  The  most 
abhorrent  acts  of  his  reign  were  those  following  the  attempt 
of  the  Duke  of  Monmouth,  an  illegitimate  son  of  Charles  II, 
to  enforce  a  claim  to  the  throne,  backed  in  Scotland  by  the 
Duke  of  Argyle.  The  rebellious  forces  were  quickly  and 
easily  overcome  and  cruel  butcheries  followed,  but  more  cruel 
and  cold  blooded  than  those  perpetrated  by  the  soldiery  were 
the  executions  for  treason  under  sentence  of  that  monster  of 
judicial  cruelty,  Jeffreys,  chief  justice  of  England,  who  in  a 
very  brief  time  caused  the  death  of  251   persons,  many  of 


734  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

whom  were  innocent,  but  all  of  whom  were  found  guilty  by 
packed  and  coerced  juries.  James  attempted  to  restore  the 
Court  of  High  Commission,  and  for  that  purpose  appointed 
seven  commissioners  with  unlimited  authority  over  church 
affairs.  Nothing  more  obnoxious  could  have  been  done  by  a 
Papist.  When  the  storm  of  public  indignation  had  been  raised 
by  the  arrest,  trial  and  acquittal  by  a  jury,  of  six  bishops,, 
who  remonstrated  against  his  order  to  read  his  declaration  of 
indulgence  in  all  the  churches  immediately  after  divine  ser- 
vice, and  his  eyes  were  open  to  the  fact  that  he  was  without 
support  in  any  quarter,  he  hastened  to  correct  his  errors  by 
revoking  all  his  most  unpopular  acts,  but  it  was  too  late. 

His  son-in-law,  the  Prince  of  Orange,  who  had  long  been 
looked  to  by  the  Protestants,  was  invited  into  England,  and 
having  gathered  and  brought  over  a  large  naval  force,  was 
cordially  received  by  all  classes,  even  the  army  deserting  and 
going  over  to  him.  James,  finding  himself  deserted  by  the 
nation  and  his  own  family,  was  allowed  to  escape  into  France,, 
and  by  his  flight  was  regarded  as  having  abdicated  the  throne. 
The  succession  of  James  I,  King  of  Scotland,  to  the  throne  of 
England  had  been  followed  by  the  rapidly  increasing  inde- 
pendence of  Parliament.  James  came  as  the  legal  heir  to  the 
throne  and  was  recognized  as  such.  The  case  of  William, 
however,  was  different;  he  himself  had  no  hereditary  claim, 
and  his  wife  was  not  then  the  heir,  because  of  the  birth  of  a 
male  heir.  But  the  son  was  not  yet  entitled  to  rule  because 
James  still  lived  and  had  not  formally  abdicated.  The  theory 
of  the  inheritance  of  kingly  power  was  for  the  time  definitely 
set  aside.  William  and  Mary  had  no  foundation  on  which  to 
rest  their  claims  but  that  of  the  will  of  the  nation  expressed 
through  Parliament.  A  distinct  advance  was  thus  made 
in  recognition  of  the  rights  of  the  Houses  of  Parliament  to 
represent  the  nation,  and  in  the  statute  establishing  the  corona- 
tion oath  the  supremacy  of  the  law  over  the  king,  as  well  as 
his  subjects,  was  recognized.  The  ceremony  prescribed  re- 
quired the  administration  of  the  oath  by  an  archbishop  or 
bishop  in  the  following  form:  "The  archbishop  or  bishop 
shall  say,  'Will  you  solemnly  promise  and  swear  to  govern 


THE  BRITISH  EMPIRE  735 

the  people  of  this  kingdom  of  England,  and  the  dominions 
thereto  belonging,  according  to  the  statutes  in  Parliament 
agreed  on,  and  the  laws  and  customs  of  the  same.' 

''The  king 'and  queen  shall  say,  T  solemnly  promise  so  to 
do.' 

"Archbishop  or  bishop,  'Will  you  to  your  power,  cause  law 
and  justice  in  mercy  to  be  executed  in  all  your  judgments?' 

"King  and  Queen,  'I  will' 

"Archbishop  or  bishop,  'Will  you  to  the  utmost  of  your 
power  maintain  the  laws  of  God,  the  true  profession  of  the 
gospel  and  the  Protestant  reformed  religion  established  by 
law  ?  and  will  you  preserve  unto  the  bishops  and  clergy  of  this 
realm,  and  to  the  churches  committed  to  their  charge  all  such 
rights  and  privileges  as  by  law  do  or  shall  appertain  unto 
them  or  any  of  them  ?' 

"King  and  Queen,  'All  this  I  promise  to  do.' 

"After  this  the  king  and  queen  laying  his  and  her  hand  on 
the  holy  gospels  shall  say,  King  and  Queen,  'The  things  which 
I  have  here  before  promised  I  will  perform  and  keep,  so  help 
me  God.'    Then  the  king  and  queen  shall  kiss  the  book." 

As  the  impulse  which  placed  William  and  Mary  on  the 
throne  was  mainly  a  religious  one,  the  early  legislation  was 
leveled  against  the  papists  and,  while  test  oaths  were  still  re- 
quired, there  was  toleration  of  divergence  of  opinion  among 
Protestants  within  certam  limits  fixed  by  statute.  The  people 
were  not  yet  willing  to  leave  the  matter  of  religion  to  the  free 
conscience  of  the  individual. 

With  the  accession  of  William  and  Mary  came  no  radical 
change  in  the  theory  of  government  or  the  system  of  laws. 
There  was  merely  an  advance  toward  representative  govern- 
ment. The  great  multitude  were  still  deprived  of  all  right  of 
suffrage  as  well  as  of  ownership  of  the  soil.  The  ruling  force 
was  still  the  great  landowners  and  the  titled  aristocracy. 
Those  who  had  acquired  wealth  in  the  cities  were  accorded 
some  representation,  both  in  municipal  affairs  and  in  the  elec- 
tion of  members  of  Parliament,  but  the  poor  ignorant  laborers 
everywhere  were  still  excluded  from  all  participation  in  public 
affairs  and  deprived  of  all  facilities  for  gaining  an  education. 


n^  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Privileged  classes  maintained  their  complete  ascendency  in 
accordance  with  a  system  of  laws  designed  to  accomplish  that 
end.  Inheritance  of  lands  by  the  rule  of  primogeniture  pre- 
served great  estates  in  the  hands  of  a  landed  aristocracy. 
While  the  war  of  the  roses  and  the  barbarities  of 
those  times  had  resulted  in  the  extermination  of  many  of  the 
leading  families  among  which  the  kingdom  had  been  divided 
by  William  the  Conqueror,  there  were  still  as  many  titled 
aristocrats  as  ever.  The  king  always  had  power  to  make 
them,  and  increased  his  own  importance  by  raising  his  favor- 
ites to  the  peerage,  for  it  has  always  been  true  that, 

"A  king  can  make  a  belted  knight,  a  Marquis,  Duke  and 
2!  that." 

The  great  landholders  whether  titled  or  not  have  generally 
been  the  champions  of  privilege,  which  must  always  be  syn- 
onymous with  injustice.  In  England  the  landed  aristocracy 
followed  no  useful  employment,  but  regarded  every  useful 
citizen,  who  labored  in  any  field  other  than  politics,  as  an  in- 
ferior. Idling,  drinking,  gambling,  hunting  and  fighting  in 
the  early  days,  and  horse-racing  and  other  sports  in  later 
times,  have  been  the  principal  employments  of  those  favored 
with  the  privilege  of  taking  a  large  share  of  the  products  of 
the  labors  of  others  without  compensation.  A  great  retinue  of 
servants  to  do  nothing  but  wait  on  the  lord  and  magnify  his 
importance,  also  supported  by  the  labors  of  others,  has  always 
been  deemed  a  mark  of  greatness.  In  times  when  the  multi- 
tude were  too  poor  to  attend  schools,  wealth  afforded  a  chance 
for  further  distinction  from  education.  Some  advantage  has 
accrued  to  the  nation  from  the  studies  of  those  who  despised 
labor  generally,  but  probably  far  less  than  if  the  opportunities 
had  been  better  distributed,  for  many  of  the  country  gentry 
were  too  ignorant  to  read,  and  drunkenness  and  debauchery 
have  at  all  times  been  more  attractive  to  many  of  them  than 
the  strain  of  study.  No  country  illustrates  better  than  Eng- 
land the  steady  potency  of  that  great  moral  law,  which  com- 
mands man  to  labor  and  promises  due  reward  for  it.  Though 
for  many  generations  the  burden  of  supporting  a  vicious  aris- 
tocracy and  a  more  or  less  dissolute  and  pretentious  priesthood 


THE  BRITISH  EMPIRE  -/zy 

had  been  imposed  on  the  multitude  of  ignorant  and  none  too 
industrious  or  moral  laborers,  the  advancement  of  England 
from  its  barbarism  was  due  entirely  to  the  efforts  of  artisans, 
merchants,  teachers  and  other  useful  people.  The  idle  and 
dissolute  classes,  who  claimed  superiority  and  enjoyed  such 
extensive  privileges,  were  always  an  incubus,  retarding  pros- 
perity and  often  invoking  the  dire  calamities  of  war  and 
desolation.  That  useful  activities  are  the  source  of  all  pro- 
gress is  so  self-evident  that  it  would  seem  that  all  men  ought 
to  recognize  it  from  the  slightest  consideration,  yet  the  strange 
fact  exists  that  the  privileged  classes  in  all  countries  look  down 
on  and  despise  the  useful  ones.  It  was  and  still  is  so  in 
England;  yet  the  beginnings  of  its  real  prosperity  were  the 
introduction  of  useful  arts  from  the  continent,  the  advance- 
ment of  knowledge  concerning  manufactures  and  trade,  the 
building  of  ships  and  sailing  to  distant  lands,  and  the  exchange 
by  the  merchants  of  surplus  British  products  for  the  surplus 
products  of  different  sorts  from  other  countries.  The  manu- 
facturer, the  ship  builder  and  the  merchant  had  already  done 
much  toward  building  England,  when  William  and  Mary 
came  to  the  throne,  not  aided  by  but  in  spite  of  the  dissolute 
aristocracy.  Many  of  the  aristocratic  families  had  gone  to 
ruin  and  poverty  as  the  penalty  imposed  by  nature  on  idle- 
ness, improvidence,  debauchery  ai>d  extravagance,  and  many 
great  landed  estates  had  already  passed  into  the  hands  of  those 
who  had  organized  industrial  forces  and  performed  truly 
civilized  services  in  the  useful  fields  of  industry  and  com- 
merce. The  ruling  force  of  the  nation  no  longer  reposed 
exclusively  in  the  robber  kings  and  nobles,  but  the  more 
enterprising  and  useful  classes  in  the  towns  had  some  repre- 
sentation in  the  house  of  commons,  now  rapidly  advancing 
into  the  position  of  the  dominant  political  force  in  the  king- 
dom. It  need  not  be  assumed  that  the  motives  actuating 
those  employed  in  gainful  callings  were  so  superior.  They 
too  often  asked  and  obtained  from  the  kings  and  Parliament 
special  privileges  giving  them  unmerited  advantages.  The 
trade  monopolies  granted  in  such  numbers  by  Elizabeth  and 
other  sovereigns  were  as  unjust  and  faulty  in  principle  as  the 


738  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

land  monopolies  of  feudal  times,  and  merchants  and  manu- 
facturers have  at  all  times  been  just  as  willing  to  receive 
them.  The  fundamental  superiority  however  still  remained 
with  the  industrialists,  for  no  profit  could  be  made  without 
carrying  on  their  useful  activities,  which  were  still  of  some 
value  to  the  public  though  coupled  with  monopoly  and  extor- 
tion. No  great  reform  in  the  direction  of  the  abolition  of 
privilege  was  accomplished  when  William  and  Mary  took  the 
throne,  but  an  advance  in  the  idea  of  government  was  made. 
Instead  of  a  continued  recognition  of  the  ownership  of  the 
kingdom  by  the  king  as  his  property,  the  right  of  the  people 
to  choose  a  king  was  asserted  and  exercised.  The  many 
centuries  of  education  in  the  law  of  land  tenure  and  inherit- 
ance, of  ecclesiastical  tithes  and  privileges,  of  titles,  preemi- 
nences and  inherited  right  to  rule,  had  done  their  work  so 
well,  that  no  attack  was  made  on  any  of  these,  save  the  king's 
excessive  prerogative. 

The  principal  officers  named  by  William,  after  he  assumed 
authority,  were  the  members  of  his  privy  council,  two  secre- 
taries of  state,  privy  seal,  master  of  the  horse,  of  the  robes,  of 
the  ordinance,  and  twelve  judges.  Commissioners  were 
named  for  the  treasury,  the  admiralty  and  chancery,  and  to 
remove  doubts  as  to  this  procedure  an  act  of  Parliament  was 
passed  authorizing  the  appointment  of  commissioners  in  lieu 
of  a  chancellor.  The  first  act  of  Parliament  in  William's 
reign  was  one  ''for  removing  and  preventing  all  questions  and 
disputes  concerning  the  assembly  and  sitting  of  this  present 
parliament,"  which  had  not  been  regularly  summoned.  Wil- 
liam and  Mary  were  not  the  lawful  heirs  of  the  throne.  The 
House  of  Lords  was  really  the  only  constitutional  body  of 
recognized  authority,  but  King  and  Commons  joining  with 
the  Lords  in  an  act  of  Parliament  settled  their  own  authority 
in  a  manner  which  the  nation  approved  and  sustained.  A 
long  act  was  passed  levying  a  tax  of  twelve  pence  on  the 
pound  of  annual  revenue  from  lands  and  other  property,  and 
providing  a  mode  for  its  collection  and  payment  into  the  ex- 
chequer. The  last  section  of  this  act  contained  the  require- 
ment, that  an  account  should  be  rendered  to  the  Commons  in 


THE  BRITISH  EMPIRE  739 

Parliament  of  the  use  made  of  the  money  so  levied.  This  was 
a  new  and  striking  recognition  of  the  authority  of  the  Com- 
mons and  of  the  principle  that  taxes  were  levied  for  public 
purposes  rather  than  as  gifts  to  the  king.  Another  act  was 
passed  containing  elaborate  regulations  for  the  collection  of 
an  excise  tax  on  beer,  ale  and  other  liquors.  The  Scotch 
Parliament  also  accepted  William  and  Mary  and  tendered  them 
the  Crown  of  Scotland.  In  the  British  Parliament  political 
parties  had  become  arrayed  against  each  other,  and  the  strug- 
gle of  Whigs  and  Tories  for  ascendency  went  on  in  parlia- 
ment and  at  the  elections  for  each  succeeding  parliament. 
James,  having  gained  the  support  of  France,  invaded  Ireland, 
where  he  received  the  support  of  the  Catholics  but  was  op- 
posed by  the  Protestants.  James  met  with  such  success  at 
first  that  he  was  able  to  summon  an  Irish  Parliament,  which, 
being  made  up  only  of  his  adherents,  was  of  course  favorable 
to  his  interest.  In  Scotland  he  was  supported  by  the  High- 
landers under  the  lead  of  Dundee,  who  gained  a  great  victory, 
but  lost  his  life,  at  Killicrankie.  The  battle  of  the  Boyne, 
participated  in  by  William  in  person,  settled  the  question  of 
supremacy  in  Ireland,  and  James  again  embarked  for  France, 
though  his  adherents  continued  the  struggle  for  some  little 
time  thereafter.  The  massacre  of  the  Jacobites  of  Glencoe  by 
William's  order  evidences  his  willingness  to  maintain  his 
authority  by  the  most  cruel  and  bloody  deeds.  No  more 
cowardly  or  unwarranted  massacre  is  recorded  in  history. 
The  position  of  William  as  King  was  not  such  as  that  of 
Henry  VIII,  holding  an  undisputed  title  to  the  throne,  for  he 
held  contrary  to  the  theory  of  hereditary  right.  He  therefore 
could  not  safely  force  Parliament  to  do  his  will  by  arbitrary 
arrests  of  recalcitrant  members  or  other  methods  of  coercion. 
He  chose  bribery  as  his  system  of  control.  By  inviting  a 
Hollander  to  rule  England,  Parliament  placed  on  the  throne  a 
man  far  more  intent  on  furthering  the  interests  of  his  native 
state  than  those  of  England,  and  in  the  long  and  expensive 
struggle  with  the  French  King  the  resources  of  Great  Britain 
were  used  to  further  the  interests  of  their  Dutch  rivals,  with 
whom  they  had  been  at  war  so  shortly  before,  or  at  least  what 


740  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

were  supposed  to  be  their  interests,  for  war  rarely  benefits  the 
masses  of  the  people  of  any  country.  By  the  bribery  of  mem- 
bers of  Parliament  of  either  party,  as  occasion  required,  Wil- 
liam secured  a  majority  for  all  his  most  important  demands. 
The  increase  of  foreign  trade  afforded  new  subjects  of  taxa- 
tion, and  custom  duties  were  charged  on  all  imported  goods 
brought  from  India  and  China,  and  on  numerous  other  articles 
brought  from  Europe  or  other  foreign  ports.  An  excuse 
was  found  in  the  necessity  for  protecting  the  shipping  en- 
gaged in  foreign  trade  from  the  attacks  of  the  French,  with 
whom  they  were  at  war.  Peace  would  of  course  have  been 
a  far  better  protection,  but  the  kings  of  these  great  countries 
did  not  choose  to  make  peace.  The  era  of  trading  companies 
was  fairly  begun.  The  East  India  Company  sought,  but  was 
not  accorded,  a  monopoly  of  the  eastern  trade.  In  1692  a 
corporation  named  "the  company  of  Merchants  of  London 
trading  to  Greenland"  was  created  by  act  of  Parliament  with 
a  stock  of  at  least  £40,000.  The  war  with  France  afforded 
an  excuse  for  a  system  of  annuities,  which  were  allowed  to  be 
purchased  from  the  exchequer  by  payment  of  a  gross  sum  to 
be  used  up  in  the  war.  The  principal  business  of  Parliament 
was  still  that  of  imposing  burdens  of  taxation  and  calling  out 
soldiers,  sailors  and  mariners  for  the  great  war  with  France. 
The  old  parliaments  had  mainly  followed  the  pay  as  you  go 
system,  but  it  was  now  found  that  by  means  of  loans  and 
annuities  the  money  might  be  raised  for  immediate  use  and 
the  burden  of  payment  postponed.  In  1694  Parliament  passed 
"An  act  for  granting  to  their  majesties  several  rates  and 
duties  upon  tonnage  of  ships  and  vessels,  and  upon  beer,  ale, 
and  other  liquors,  for  securing  certain  recompenses  and  ad- 
vantages in  said  act  mentioned,  to  such  persons  as  shall  vol- 
untarily advance  the  sum  of  £1,500,000  toward  the  carrying 
on  the  war  against  France"  by  which  certain  taxes  were  levied, 
and  provision  was  made  for  the  incorporation  of  the  Bank  of 
England  with  a  capital  stock  of  £1,200,000.  The  leading  pur- 
poses of  Parliament  in  this  act  were  to  facilitate  raising  a 
loan' for  the  war  and  at  the  same  time  furnish  a  desirable  in- 
vestment for  subscribers  to  the  stock.  The  act  expressly  al- 
lows members   of   Parliament  to  be   stockholders.      In   this 


THE  BRITISH  EMPI'RE  741 

manner  a  new  form  of  combination  was  established,  by  which 
the  government  of  England  entered  into  a  combination  with 
certain  citizens  to  carry  on  the  business  of  banking  and  con- 
duct the  financial  operations  of  the  government.  The  idea 
was  not  new,  as  similar  institutions  existed  in  Italy  and  Hol- 
land. By  a  subsequent  act  provision  was  made  for  enlarging 
the  capital  stock  of  the  bank,  with  many  long  and  complicated 
provisions  difficult  to  summarize.  In  1698  a  new  rival  East 
India  Company  was  incorporated  with  exclusive  privilege  of 
trade  to  the  East  Indies,  reserving  a  right  to  the  old  company 
to  continue  until  Sept.  29,  1701.  The  two  afterward  con- 
solidated during  this  reign.  Another  great  company  was 
chartered  for  the  African  trade.  An  inspection  of  the  many 
acts  relating  to  trade  discloses  the  great  attention  it  received 
and  the  efforts  of  individuals  and  companies  to  gain  advan- 
tages by  restrictive  legislation,  tending  to  secure  to  them  either 
a  complete  monopoly  of  some  branch  of  trade  or  some  undue 
advantage  in  it.  Sometimes  the  act  took  the  form  of  an  out 
and  out  monopoly  as  in  the  trade  to  India,  sometimes  by  pre- 
venting the  importation  of  foreign  goods  in  competition  with 
domestic,  and  again  by  prohibition  of  the  exportation  of  raw 
materials  like  wool,  hides,  etc.  Occasionally  acts  are  found 
abolishing  some  special  privilege,  against  which  there  was  an 
outcry,  but  in  more  instances  the  motive  of  the  law  was  to 
confer  a  special  advantage  on  some  favored  ones.  The  cor- 
ruption of  the  members  of  Parliament  is  much  condemned  by 
historians,  as  also  is  the  system  followed  by  William  of  carry- 
ing his  measures  by  bribing  members  with  money  or  by 
appointing  leading  ones  to  office.  In  considering  the  moral 
turpitude  of  these  acts  they  should  be  compared  with  preceding 
rather  than  subsequent  conditions.  The  idea  of  treating 
moneys  voted  to  the  king  as  merely  trust  funds  to  be  used  for 
the  public  good,  had  its  beginning  only  in  the  reign  of  Charles 
II.  Elizabeth  did  as  she  liked  with  the  funds  granted  her. 
She  bestowed  public  land  or  money  on  whomsoever  she 
pleased,  for  service  or  out  of  mere  favor,  and  scorned  to  ac- 
count to  anyone  for  it.  Under  William  the  trust  fund  theory 
had  gained  firm  hold  on  the  public,  and  the  practice  was 


742  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

adopted  of  raising  money  by  taxation  and  at  the  same  time 
making  express  provision  for  its  application.  It  had  been 
started  under  James  I  but  did  not  become  a  settled  system 
till  the  reign  of  William.  The  fact  that  questions  of  this  sort 
could  be  and  were  freely  discussed,  of  itself  evidences  a 
marked  advance  in  the  public  comprehension  of  the  limitations 
of  authority  and  the  legitimate  purposes  of  government. 
Though  William  obtained  larger  contributions  than  any  of 
his  predecessors,  he  took  them  under  greater  restrictions. 
Parliament  had  become  the  ruling  force,  and  the  king's  pre- 
rogative had  been  greatly  reduced.  The  policy  adopted  by 
him  of  changing  his  chief  ministers  in  such  manner  as  to 
have  men  in  accord  with  the  party  majority  in  Parliament, 
though  started  as  a  mere  expedient  to  accomplish  his  own 
ends,  was  the  foundation  on  which  ministerial  accountability 
was  built,  which  in  time  took  substantially  all  power  out  of 
the  hands  of  the  king  and  vested  it  in  the  ministry,  as  rep- 
resentatives of  the  party  having  a  majority  in  Parliament. 
The  ruling  class  was  divided  into  Whigs  and  Tories,  and 
party  strife  became  very  intense.  The  real  power  of  the 
kingdom  was  in  the  landed  aristocracy  and  the  men  who  had 
gained  wealth  by  trade  and  other  enterprises.  The  great 
multitude  were  still  ignorant  and  poor  and  allowed  neither  a 
share  of  the  face  of  the  earth  or  of  the  accumulated  knowledge 
of  the  past,  nor  were  they  given  any  voice  in  the  government. 
The  adherence  of  the  Irish  people  to  the  Roman  church  and 
to  King  James  afforded  an  excuse  for  the  confiscation  of  the 
greater  part  of  the  lands  of  the  island,  and  was  the  starting 
point  of  that  great  system,  through  which  a  title  to  the  soil 
of  Ireland  was  vested  in  certain  English  favorites,  to  whom  it 
was  sold  at  a  low  price  or  given  as  a  mere  matter  of  favor; 
thereby  placing  all  the  native  population  dwelling  on  it  at 
the  mercy  of  foreign  owners,  who  have  often  exhibited  little 
or  no  regard  for  the  rights  or  welfare  of  their  tenants.  No- 
where are  the  workings  of  theories  of  hereditary  ownership 
of  land,  disconnected  from  occupancy,  better  illustrated  than 
in  the  case  of  these  Irish  estates.  Through  the  accident  of 
birth  the  heirs  of  these  first  proprietors,  who  got  a  paper  title 


THE  BRITISH  EMPIRE  743 

to  vast  estates  without  giving  an  equivalent,  have  from  gen- 
eration to  generation  been  protected  by  the  law,  the  courts 
and  the  army  in  whatever  measures  of  oppression  and  extor- 
tion they  have  seen  fit  to  adopt  and  enforce  on  the  generations 
of  native  people  born  on  the  land.  Nowhere  else  is  the  utter 
want  of  moral  foundation  for  such  a  legal  theory  and  system 
more  strikingly  exhibited.  The  tiller  of  the  soil,  who  alone 
has  done  anything  to  make  it  produce,  has  often  starved,  while 
the  crops  he  has  raised  have  gone  merely  to  gratify  the  pride 
and  minister  to  the  luxurious  Hving  of  distant  favorites  of  the 
law,  who  have  done  no  service  meriting  any  return  whatever. 
Thus  mere  accident  of  birth  is  by  law  made  the  highest  merit 
and  given  the  greatest  reward.  The  same  system  prevailed 
in  England  with  the  modification,  that  in  most  instances  the 
owners  lived  on  their  estates  more  or  less  of  the  time  and 
squandered  their  revenues  on  servants  about  them  and  neigh- 
boring tradesmen,  while  all  was  taken  away  from  Ireland. 
The  making  of  the  laws  was  still  quite  as  much  in  the  hands  of 
those  favored  by  this  system,  after  the  House  of  Commons 
came  to  be  a  leading  factor  in  the  government,  as  before.  The 
great  landowners  and  men  of  great  wealth  chose  the  members, 
mostly  from  among  their  own  number.  Nevertheless  real 
reform  went  on,  the  method  of  administering  a  fundamentally 
unjust  system  of  laws  was  considerably  improved.  Procedure 
was  gradually  made  a  little  less  technical;  sherifiFs,  bailiffs 
and  other  court  officials  were  held  to  a  mere  strict  perform- 
ance of  duty;  contracts  and  such  rights  as  the  law  gave  were 
better  enforced.  Above  all  freedom  to  perceive  the  truth  in 
relation  to  any  matter  and  to  express  it  steadily  came  to  be 
regarded  as  less  dangerous  to  the  good  order  of  society.  The 
great  educational  process,  through  which  errors  are  detected 
and  discarded,  was  going  on  among  the  people,  and  the  con- 
tentions of  political  parties  and  religious  factions  caused  a 
continual  challenging  of  the  basis  of  claims  of  privilege  and 
authority. 

The  essential  division  of  the  powers  of  state  in  England  as 
subsequently  maintained  fairly  dates  from  the  reign  of  Wil- 
liam and  Mary.    The  House  of  Commons,  as  the  direct  rep- 


744  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

resentative  of  the  ruling  class  in  the  nation,  was  the  leading 
force,  the  House  of  Lords  held  second  place  as  a  law-making 
body,  the  King  was  still  the  executive  head,  but  required  to 
act  through  ministers  accountable  to  Parliament.  The  judges 
were  liberated  from  the  dictation  of  the  king  by  holding 
tenure  of  office  during  good  behavior,  and  subject  to  removal 
only  by  Parliament.  In  the  act  regulating  the  succession  to 
the  Crown,  Ch.  2-12  and  13,  William  III,  it  is  provided  that 
no  person  to  whom  the  crown  shall  pass  shall  engage  in  any 
war  for  the  defense  of  any  territory  not  belonging  to  the 
crown  of  England  without  the  consent  of  Parliament,  nor 
shall  he  go  out  of  the  three  islands  without  such  consent ;  that 
resolutions  of  the  privy  council  shall  be  signed  by  such  of  the 
members  as  consent  thereto ;  that  no  foreigner  shall  be  made  a 
privy  councillor;  that  no  officer  or  pensioner  holding  under 
the  king  should  serve  in  the  House  of  Commons ;  that  judges 
should  hold  office  ''qtuimdiu  se  bene  gesserinf  with  salaries 
ascertained  and  established;  and  that  the  law-making  power 
shall  rest  in  the  king  and  two  houses  of  parliament.  These 
provisions,  though  not  so  often  mentioned  as  the  Magna 
Charta,  were  of  far  more  real  importance,  in  that  they  bal- 
anced power  against  power  and  made  one  arm  of  the  govern- 
ment a  check  on  the  abuses  of  another,  and  especially  because 
they  effectually  curbed  the  arbitrary  power  of  the  king. 

On  the  death  of  William  in  1701,  Anne,  Princess  of  Den- 
mark, though  not  the  heir  in  the  regular  order  of  succession, 
was  proclaimed  Queen;  Charles  being  excluded  on  account  of 
religion  and  she  having  been  declared  the  next  in  the  Protest- 
ant line.  Among  her  first  acts  was  a  declaration  of  war 
against  France,  which  continued  until  a  treaty  of  peace  was 
concluded  at  Utrecht  in  171 3.  Many  great  battles  were  fought 
and  great  victories  won  under  the  leadership  of  the  renowned 
Marlborough  in  the  low  countries,  Germany,  Spain  and  Portu- 
gal, but  the  main  result  of  the  war  was  vast  expense,  much 
bloodshed  and  misery.  At  the  conclusion  of  peace  England 
gained  territory  in  America,  which  she  has  ever  since  retained. 
The  public  debt,  which  at  the  revolution  in  1689  was  £664,263 
grew  under  William  to  £16,394,702  to  which  Anne  added 


THE  BRITISH  EMPIRE  745 

£37,750,661   more,  notwithstanding  unusually  liberal  grants 
of  revenue  during  both  reigns.     The  wars  and  the  voyages 
of  the  sailors  were  valuable  in  an  educational  way  by  bringing 
Englishmen  in  contact  with  the  people  of  other  countries  and 
teaching  them  the  geography,  products  and  arts  of  other  lands. 
The  discovery  of  America  and  the  opening  of  eastern  trade 
had  introduced  many  articles  of  food,  clothing,  etc.,  which 
had  been  unknown  to  -Europeans  before.    Potatoes,  maize  and 
tobacco  from  America,  spices,  tea,  coffee  and  eastern  manu- 
factures, had  become  important  articles  of  commerce.    While 
war  went  on  the  struggle  for  wealth  continued  and  the  spirit 
of  adventure  grew.     The  most  valuable  achievement  of  the 
reign  of  Anne  was  the  union  of  Scotland  with  England,  which 
was  brought  about  by  a  treaty  framed  by  commissioners  ap- 
pointed by  the  queen  for  each  nation  under  authority  of  their 
respective  parliaments.     The  leading  features  of  the  treaty 
were,  that  the  crown  of  the  united  kingdom  of  Great  Britain 
should  be  vested  in  the  Princess  Sophia  and  her  heirs,  as  had 
been  before  settled  by  act  of  the  English  Parliament;  that 
the  United  Kingdom  should  be  governed  by  a  single  Parlia- 
ment; that  the  subjects  of  each  country  should  have  equal  priv- 
ileges and  share  the  public  burdens  under  certain  adjustments 
of  customs  and  excise  provided  for ;  that  the  coin  of  Scotland 
should  be  made  the  same  as  that  of  England;  that  the  laws 
concerning  public  rights,  policy  and  civil  government  should 
be  the  same  throughout  the  united  kingdom,  but  that  no  alter- 
ation should  be  made  which  concerned  private  rights,  except 
for  evident  utility  of  the  subjects  in  Scotland;  that  the  courts 
in  Scotland  should  remain  as  before,  subject  to  such  regula- 
tions as  Parliament  might  thereafter  make ;  that  heritable  offi- 
ces in  Scotland  should  continue  to  the  owners  as  property; 
that  Scotland  should  be  represented  in  Parliament  by  sixteen 
peers  and  forty-five  commoners,  to  be  elected  in  such  manner 
as  the  then  existing  Scotch  Parliament  should  provide;  that 
Scotch  peers  should  rank  next  after  English  and  before  those 
thereafter  created,  but  should  not  be  allowed  to  sit  in  Parlia- 
ment unless  chosen  as  provided.     This  treaty  was  ratified  by 
the  parliaments  of  both  countries,  though  not  without  oppo- 


746  EVOLUTIO'N  OF  GOVERNMENTS  AND  LAWS 

sition,  and  on  Oct.  23,  1707,  the  first  British  ParHament 
assembled  at  Westminster.  The  genius  for  organization, 
adventure  and  speculation  continued  to  manifest  itself  among 
the  people,  and  in  171 1  the  famous  South  Sea  Company  was 
incorporated  with  a  monopoly  of  trade  to  the  South  Seas. 
The  charter  was  granted  to  persons  holding  navy  bills,  de~ 
bentures  and  other  public  securities.  Although  the  reign  of 
Anne  was  burdened  with  the  moral  reproach  of  a  long  con- 
tinued and  exhausting  continental  war,  it  stands  greatly  to 
her  credit  that  no  subject's  blood  was  shed  for  a  charge  of 
treason. 

On  her  death  in  171 4  the  elector  of  Hanover  was  proclaimed 
King  under  the  name  of  George  I.  He  began  his  reign  by 
dismissing  the  Tory  officials  and  selecting  Whigs.  The  ad- 
herents of  the  pretender,  as  he  was  styled,  raised  a  revolt  with 
considerable  head  in  Scotland,  but  were  crushed  without  much 
difficulty.  The  barbarous  spirit  again  manifested  itself  in 
prosecutions  for  treason,  both  by  impeachment  and  trials  in 
the  courts,  and  many  persons  were  executed  with  customary 
barbarities  of  hanging,  drawing  and  quartering,  while  others 
in  large  numbers  were  transported  over  the  seas.  As  usual 
the  martyrs  included  in  their  numbers  some  of  the  best  men 
of  the  time.  The  desire  for  the  fruits  of  the  labors  of  others 
was  still  active  among  those  near  the  throne,  but  the  old 
method  of  seizing  great  estates  and  forcing  the  occupants  to 
labor  for  the  possessor  had  largely  given  way  to  newer  and 
more  refined  methods  of  using  the  governing  power  for  the 
benefit  of  the  favored  few.  The  public  debt,  incurred  in  for- 
eign wars,  had  become  the  basis  of  the  formation  of  great 
companies,  which  were  given  the  countenance  and  support  of 
the  government  in  return  for  loans  of  money  on  public  securi- 
ties. Public  revenues  became  payable  to  such  corporations 
for  interest  on  the  public  debt,  and  the  people  were  induced  to 
take  their  stocks  on  the  faith  of  the  support  of  the  govern- 
ment and  of  the  power  and  influence  of  the  boards  of  di- 
rectors, in  which  were  included  many  of  the  leading  men  of 
the  kingdom.  The  greatest  of  such  corporations  were  the 
Bank  of  England,  the  East  India  Company  and  the  South  Sea 


the'  BRITISH  EMPIRE  747 

Company.  Among  others  of  less  note  were  the  Royal  Assur- 
ance and  London- Assurance  companies.  About  1720  the 
managers  of  the  South  Sea  Company  succeeded  in  arousing  a 
spirit  of  wild  speculation  in  its  stocks.  It  had  become  the 
holder  of  a  large  part  of  the  public  debt,  and  through  the  arts 
of  its  managers  came  to  be  regarded  as  a  source  of  unlimited 
profit.  The  craze  became  so  great  that  £100  shares  sold  as 
high  as  £1,000  without  any  substantial  reason  for  such  a 
valuation.  Other  speculative  corporations,  projected  to  carry 
out  more  or  less  useful  purposes,  were  formed  in  great  num- 
ber. The  spirit  of  speculation  took  possession  of  great  num- 
bers of  all  classes  and  callings,  and  the  most  shrewd  and 
unscrupulous  for  a  brief  time  gained  enormous  profits,  not 
from  the  fruits  of  legitimate  business  ventures,  but  from  the 
sale  of  stocks  in  these  corporations.  Industry  was  abandoned 
by  many  and  luxurious  living  and  the  vices,  crimes  and  follies 
peculiar  to  the  rich  became  prevalent.  But  prices  of  shares 
could  not  be  advanced  forever.  When  they  began  to  fall, 
people  awoke  from  their  dreams  to  see  the  true  character  of 
the  scheme  in  which  their  money  was  invested,  and  the  in- 
evitable crash  and  misery  followed.  Parliament  acted  with  a 
vigor  and  effectiveness  seldom  exhibited  there  or  elsewhere. 
An  investigation  was  ordered  through  a  committee,  which  dis- 
covered the  gigantic  frauds  of  the  directors  and  their  friends, 
who  were  required  to  disgorge  their  ill-gotten  gains  for  the 
satisfaction  of  the  defrauded  stockholders.  The  tedious  proc- 
esses of  the  courts  were  dispensed  with,  the  directors  were 
required  by  Parliament  to  bring  in  inventories  of  their  estates 
and  an  act  was  passed  confiscating  them  to  make  good  the 
damages'  resulting  from  their  frauds.  The  practice  of  bribing 
members  of  Parliament  to  carry  the  king's  measures  through 
continued,  and  large  sums  were  required  to  be  raised  by  tax- 
ation to  pay  pensions  and  bribes  given  by  the  king.  The 
principal  business  of  Parliament  continued  to  be  to  grant  the 
king  supplies  of  men  and  money  for  foreign  wars,  either 
entered  on  or  threatened.  The  nation  was  both  warlike  and 
eager  for  gain.  Foreign  affairs  had  come  to  be  a  matter  of 
great  concern  to  the  merchants,  who  found  that  in  many  in- 


748  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

stances  wars  were  destructive  of  their  profits,  while  in  others 
they  imagined  that  their  interests  could  be  promoted  by  force. 
The  division  into  Whigs  and  Tories  and  the  constant  presence 
i:i  Parliament  of  a  minority  opposed  to  the  ministry,  caused 
public  discussion  of  matters  of  interest,  the  discovery  of  the 
truth  and  adoption  of  an  advanced  moral  standard.  Though 
each  party  was  violent  and  unscrupulous  in  its  attacks  on  the 
other,  the  people  judged  between  them,  and  a  very  small  mi- 
nority were  influenced  mainly  by  the  truth.  The  multitude 
followed  their  blind  prejudices  most  of  the  time.  George, 
though  not  a  man  of  either  great  ability  or  high  moral  pur- 
poses, maintained  his  power  and  was  exceptionally  successful 
in  obtaining  the  support  of  his  Parliaments. 

The  reign  of  George  II  was  similar  in  main  to  that  of  his 
father.  There  were  the  same  political  parties  and  corruption. 
The  government  was  still  looked  to  by  that  class  of  crafty 
men,  who  everywhere  surround  the  ruling  force,  as  a  means 
of  obtaining  wealth  without  meritorious  service.  Pensions 
were  paid  to  favorites  out  of  money  collected  by  taxation, 
and  the  most  venal  and  undeserving  of  men  were  rewarded 
with  incomes  they  did  nothing  to  earn.  In  the  efforts  to  gain 
party  advantage  moral  principles  were  appealed  to  to  con- 
demn adversaries,  and  though  the  evil  practices  continued,  the 
public  slowly  gained  some  perception  of  the  true  principles  of 
government.  On  the  whole  the  reigns  of  the  first  three 
Georges  were  periods  of  increased  power  in  the  king  and 
his  ministers,  though  maintained  by  corrupt  practices  rather 
than  by  general  acknowledgment  of  prerogatives.  The 
morals  of  the  people  in  the  times  of  George  I  and  George  II 
are  said  to  have  been  very  low,  but  commerce  and  industries 
continued  to  expand.  The  impulses  that  pushed  civilization 
forward  came  from  active  brains  employed  in  useful  callings, 
rather  than  from  those  more  prominent  persons,  who  in  the 
king's  councils  or  in  Parliament  merely  sought  wealth  they 
did  not  earn  and  power  to  do  evil.  Under  the  Georges  it  is 
difficult  to  detect  much  of  use  to  the  public  in  the  functions 
of  government.  The  courts,  though  considerably  improved 
through  greater  independence  of  royal  favor,  were  still  prin- 


THE  BRITISH  EMPIRE  749 

•cipally  employed  in  enforcing  the  privileges  of  the  landed 
aristocracy,  the  demands  of  monopolists  and  other  favorites 
of  the  government  and  the  barbarous  punishment  of  persons 
charged  with  crimes.  Of  the  sums  raised  by  taxation  war 
took  the  major  part,  court  favorites  came  next,  and  roads, 
bridges  and  public  works  a  comparatively  insignificant  part. 
Foreign  trade  grew,  rather  in  spite  of  governmental  restric- 
tions and  burdens  than  because  of  its  fostering  care  and 
protection.  The  enterprise  of  the  merchant  constantly  found 
ways  of  utilizing  the  wealth  of  the  distant  quarters  of  the 
globe,  notwithstanding  the  trade  monopolies  and  the  taxation 
imposed  for  the  benefit  of  favored  persons.  The  real  pro- 
gressive Britain  was  in  the  merchants'  counting  rooms,  the 
factories  abroad,  the  industrial  establishments,  on  the  sea, 
and  among  the  truth  seekers,  who  by  speech  and  writing  con- 
demned the  immoralities  of  the  age.  Though  the  king  and 
his  ministers  continued  to  bribe  members  of  Parliament  to 
vote  for  their  tax  bills,  the  established  system  of  inquiring 
into  the  use  made  of  public  money  tended  to  check  inordinate 
expenditure  and  to  repeatedly  call  public  attention  to  the  fact 
that  the  money  raised  by  taxation  was  mostly  worse  than 
wasted.  The  system  of  administration  through  a  ministry 
accountable  to  Parliament  was  still  in  a  tentative  stage.  The 
king  claimed  the  right  to  choose  his  ministers  and  many  sup- 
ported his  claim.  The  accountability  of  the  ministry  was  es- 
sential to  any  effectual  check  on  the  king's  conduct  of  the 
government,  for  the  king  himself  could  only  be  reached  by 
revolution.  It  is  a  strange  circumstance  that  in  a  country  so 
far  removed  from  Rome,  by  geographical  position,  by  race, 
and  yet  more  by  the  peculiar  spirit  of  its  institutions,  the  Latin 
language  should  have  been  so  long  used  in  the  courts.  It  was 
not  till  1 73 1  that  a  bill  was  passed  providing  that  thereafter 
all  pleadings  and  processes  should  be  in  the  English  language. 
The  Seven  Years'  war  from  1756  to  1763,  which  involved  not 
only  the  rival  kingdoms  of  England  and  France,  but  also 
Austria,  Russia  and  the  rising  power  of  Prussia,  was  known 
on  its  American  side  as  the  French  and  Indian  War  and  in- 
voked a  cruel  and  bitter  war  between  the  colonists  of  the 


750  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

respective  countries  in  America  and  India.  The  result  on  sea 
and  land  was  exceedingly  favorable  to  British  supremacy.  In 
America  Canada  became  and  has  ever  since  remained  a  British 
possession  and  in  India  the  French  v^ere  overpowered  and 
British  ascendency  established.  At  sea  British  naval  victories 
made  England  the  first  naval  power  of  the  world.  To  its 
mastery  of  the  ocean  Great  Britain  mainly  owes  its  wealth 
and  power.  The  surplus  products  of  all  lands  are  floated  to 
its  harbors  for  the  use  of  its  people.  The  expenses  incurred  in 
the  war  in  America  led  to  the  question  as  to  the  share  to  be 
paid  by  the  colonies  and  the  method  of  imposing  taxes  on 
them. 

The  right  to  regulate  the  commerce  of  the  colonies  and  all 
foreign  possessions  had  always  been  claimed  and  exercised  by 
Parliament,  and  was  not  seriously  questioned,  though  the  bur- 
den of  the  restrictions  on  exchanges  in  the  most  favorable 
markets  was  felt  to  be  very  heavy.  In  1764  by  Ch.  15,  acts 
of  4  George  III  duties  were  imposed  on  various  articles  im- 
ported into  the  American  colonies  from  Great  Britain ;  on 
white  sugar  £1  2s.  per  one  hundred  pounds  in  addition  to  the 
duties  imposed  by  former  acts.  On  indigo  6d.  per  pound, 
coffee  £2  19s.  9d.  per  one  hundred  pounds.  Calico  made  in 
Persia,  China  or  India  and  imported  from  Great  Britain  2s. 
6d.  per  piece  of  ten  yards  or  less.  Like  duties  were  imposed 
on  wines,  silks  and  other  cotton  stuffs.  The  same  act  con- 
tains a  prohibition  on  the  importation  of  sugar  into  Ireland 
except  from  Great  Britain  and  many  elaborate  provisions  de- 
signed to  secure  to  British  merchants  a  monopoly  of  trade 
with  the  American  colonies.  Among  other  acts  passed  at  the 
same  session  of  Parliament  was  one  giving  a  bounty  on  hemp 
and  undressed  flax  imported  from  America;  one  permitting 
the  exportation  of  rice  from  South  Carolina  subject  to  duty, 
and  another  prohibiting  bills  of  credit  issued  in  the  colonies 
from  being  made  a  legal  tender.  All  these  acts  were  acqui- 
esced in  as  the  exercise  of  legitimate  power.  At  the  next  ses- 
sion held  in  1765,  Parliament  passed  an  act  which  met  with  a 
different  reception.  It  is  published  as  Ch.  12-5  George  III 
and  imposed  stamp  taxes,  not  only  on  all  paper  and  parch- 


THE  BRITISH  EMPIRE  75i 

ment  used  in  legal  proceedings  in  all  the  different  courts  in  the 
colonies,  or  on  which  were  written  wills,  deeds,  contracts  or 
bills  of  sale,  but  also  pamphlets,  advertisements,  almanacs  and 
many  other  publications.  A  tax  of  £io  was  imposed  on  the 
parchment  on  which  a  lawyer's  license  to  practice  was  written. 
Courts  were  prohibited  from  receiving  in  evidence  any  paper 
not  duly  stamped,  and  a  penalty  of  £io  was  imposed  on  any 
person  executing  an  instrument  without  causing  it  to  be 
stamped.  The  act  was  very  long  (twenty-four  pages),  and 
minute  in  its  regulations.  It  provided  for  commissioners  to 
sell  the  stamps  and  enforce  their  use.  Unlike  the  duties  on 
imports  and  exports  these  stamp  taxes  called  for  a  direct 
contribution  from  each  citizen,  when  it  became  necessary  for 
him  to  use  paper  or  parchment  for  almost  any  purpose,  and  the 
act  was  such  an  assertion  of  the  sovereignty  of  Parliament  as 
to  challenge  the  attention  of  the  people.  Nothing  could  better 
exhibit  the  lack  of  understanding  on  the  part  of  British  states- 
men of  the  spirit  of  the  colonists,  than  the  passage  of  so 
vexatious  an  act  to  be  enforced  on  the  liberty  loving  Ameri- 
cans. The  ministry  soon  learned  their  mistake  and  found  how 
utterly  impracticable  it  was  to  enforce  the  law.  In  the  next 
session  of  Parliament,  held  in  the  same  year,  Ch.  11-5 
George  III  repealed  the  whole  act,  but  this  was  most  unwisely 
followed  by  Ch.  12,  entitled  "An  act  for  the  better  securing 
the  dependency  of  His  Majesty's  dominions  in  America  upon 
the  Crown  and  Parliament  of  Great  Britain,"  which  is  some- 
times called  the  declaratory  act;  in  which  it  was  provided 
'That  the  said  colonies  and  plantations  in  America  have  been, 
are  and  of  right  ought  to  be  subordinate  unto  and  dependent 
upon  the  imperial  crown  and  Parliament  of  Great  Britain,  and 
the  King's  majesty  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal  and  commons  of  Great  Britain,  in 
Parliament  assembled,  had,  hath  and  of  right  ought  to  have 
ifull  power  and  authority  to  make  laws  and  statutes  of  suffi- 
cient force  and  validity  to  bind  the  colonies  and  people  of 
America  subjects  of  the  crown  of  Great  Britain  in  all  cases 
whatsoever,"  and  that  all  acts  of  colonial  legislatures  to  the 
contrary  are  void.     Though  the  vexatious  stamp  act  had  been 


752  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

repealed,  this  act  asserted  the  power  of  padiament  to  reim- 
pose  it  or  enact  any  other  law  or  impose  any  other  tax  it  might 
see  fit.  The  colonists  denied  this  power,  because  they  were 
not  represented  in  parliament.  They  asserted  that  taxes  were 
grants  made  by  the  taxpayers  through  their  chosen  representa- 
tives to  the  king,  and  that  this  was  a  fundamental  principle 
of  the  British  constitution.  At  the  same  session  of  Parliament 
certain  duties  were  removed.  At  the  next  session  Ch.  46-7th 
George  III  was  passed  imposing  duties  on  a  few  articles  im- 
ported into  the  colonies.  On  white  or  red  lead  2s.  per  one 
hundred  pounds.  Tea  3d.  per  pound.  Glass,  clear  or  white 
4s.  8d.  per  one  hundred  pounds,  green  is.  2d.  per  one  hundred 
pounds,  paper  of  different  grades  at  various  rates. 

The  attention  of  the  colonists  having  been  aroused  to  the 
principle  of  taxation,  even  this  mild  measure  was  stubbornly 
resisted.  The  attempt  to  compel  obedience  to  parliamentary 
authority  by  force  was  met  by  force.  France  and  Spain 
seized  the  opportunity  of  the  revolt  of  the  colonies  to  cripple 
an  hereditary  foe  and  joined  their  forces  against  Great 
Britain.  The  result  was  the  loss  of  the  most  valuable  pos- 
sessions of  the  British  nation.  The  ideas  of  government  en- 
tertained by  the  colonists  were  largely  those  prevailing  in 
England  in  the  time  of  Cromwell.  The  reaction  which  had 
ensued  in  England  had  not  been  felt  to  such  an  extent  in 
America,  where  there  was  no  distinctly  aristocratic  element 
of  society.  The  adoption  by  the  colonies  of  a  republican  form 
of  government  had  no  marked  influence  on  British  institutions. 
The  laws  of  England,  except  as  modified  by  legislative  action, 
were  adopted  by  the  colonies,  and  the  theories  of  government 
were  generally  the  same,  except  as  to  the  hereditary  king  and 
nobility.  When  the  French  revolution  came,  England  was  not 
affected  as  were  the  countries  of  continental  Europe.  Through 
its  Parliament  the  nation  had  representation  in  the  govern- 
ment, and  there  was  a  peaceable  method  for  reforming  the 
evils  of  government.  The  judiciary  also  was  far  more  inde- 
pendent and  enjoyed  in  a  much  higher  degree  the  confidence 
of  the  people  than  in  continental  states.  Above  all  much 
greater  freedom  of  speech  and  of  business  combination  and 


THE  BRITISH  EMPIRE  753 

enterprise  was  allowed  in  Great  Britain  than  on  the  continent. 
In  Parliament  members  were  accustomed  to  freely  express 
their  views  on  all  public  matters,  and  pamphleteers  made  at- 
tacks in  print  on  whatever  they  saw  fit.  This  measure  of 
liberty  the  ruling  power  of  Great  Britain,  which  now  rested 
in  the  great  landholders  and  capitalists,  accorded  to  the 
masses.  The  descendants  and  successors  of  the  ancient  feudal 
barons  still  claimed  most  of  the  face  of  the  country,  which 
they  held  by  descent  or  purchase  in  large  tracts,  but  they  were 
no  longer  the  only  wealthy  class.  Trade,  industries  and 
speculation  had  produced  another  wealthy  and  more  active 
class,  who  gained  seats  in  Parliament  and  often  added  to 
their  wealth  by  special  acts  in  the  interest  of  themselves  and 
their  associates.  Parliament  had  always  been  an  aristocratic 
body.  Ch.  20,  33,  George  II,  enforcing  the  act  of  9th  Anne, 
required  members  of  the  House  of  Commons  to  swear  that 
they  were  qualified  to  sit  for  the  places  for  which  they  were 
returned.  If  elected  as  a  knight  of  the  shire,  the  member 
must  have  £600  a  year  income  from  lands,  if  a  citizen,  bur- 
gess or  baron  of  the  cinque  ports  £300.  All  the  forces  of  a 
government  thus  constituted  were  arrayed  against  the  prin- 
ciples of  the  great  National  Assembly  of  France,  which  pro- 
claimed liberty,  equality  and  fraternity.  Some  liberties  the 
English  people  had  long  enjoyed,  which  were  unknown  in 
France  and  Continental  Europe  generally,  but  equality  and 
fraternity  were  utterly  repulsive  and  abhorrent  to  those  who 
not  only  conducted  the  British  government  but  also  shaped 
public  sentiment.  The  general  effect  in  England  of  the 
French  revolution  was  to  strengthen  the  hands  of  the  aris- 
tocratic element  and  to  place  the  country  in  an  attitude  of 
intense  hostility  to  French  revolutionary  ideas  and  to  the 
French  nation.  Throughout  the  long  struggle  which  ensued, 
England,  the  most  liberal  and  progressive  of  the  great  Eu- 
ropean states  during  the  preceding  century,  took  its  dogged 
stand  as  the  most  conservative  and  bitter  foe  to  French  lib- 
erty. For  the  long  and  destructive  wars  which  devastated 
Europe  and  caused  so  much  good  blood  to  be  poured  out 
on  the  great  battlefields,  England  is  justly  chargeable  with 


754  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

a  large  measure  of  responsibility.  From  that  war  the  Eng- 
lish people  suffered  far  less  than  those  of  the  continental 
states,  over  which  the  great  armies  under  Napoleon  and  the 
combined  forces  of  his  foes  fought.  To  the  sea  and  the 
British  navy  the  people  of  the  isles  owed  security  from  in- 
vasion. British  armies  fought  on  the  continent,  and  many 
good  men  were  slaughtered  in  distant  lands,  but  war's  deso- 
lation on  English  soil  was  avoided.  The  policy  of  increasing 
the  navy  had  been  pushed  with  such  success  that,  long  before 
the  final  overthrow  of  Napoleon,  the  French  fleets  were  de- 
stroyed and  Great  Britain  was  master  of  the  seas.  In  1800 
the  Irish  Parliament,  which  was  not  much  of  a  representa- 
tive of  the  Irish  people,  consented  to  a  union  with  Great 
Britain  with  a  representation  in  the  British  Parliament  of 
four  lords  spiritual,  twenty-eight  lords  temporal,  elected  by 
the  Irish  peers  for  life,  and  one  hundred  members  of  the 
House  of  Commons.  The  semblance  of  Irish  nationality  dis- 
appeared with  the  termination  of  the  Irish  Parliament.  This 
followed  a  rebellion,  which  had  been  crushed  and  punished 
with  great  barbarity,  chargeable  in  some  measure  to  relig- 
ious prejudice  and  the  bitter  hatred  existing  between  the 
Protestant  Orangemen  and  the  Catholics.  Throughout  all 
time  it  has  been  a  part  of  the  trade  of  rulers,  civil,  military 
and  ecclesiastical,  to  claim  the  credit  of  all  advancement  in 
material  interest  of  the  nation,  and  to  attribute  all  calamities 
and  misfortunes  of  the  people  to  their  refusal  to  follow  the 
guidance  of  the  constituted  authorities.  During  the  long 
reign  of  George  III  the  rulers  provoked  the  disastrous  war, 
which  resulted  in  the  independence  of  the  American  colonies. 
They  also  engaged  in  the  long  and  bloody  struggle  carried 
on  to  crush  the  political  truths  promulgated  by  the  leaders 
of  the  French  revolution.  Numberless  good  men  were  sac- 
rificed in  the  strife,  and  a  vast  national  debt  was  incurred 
which,  though  somewhat  reduced,  still  burdens  the  English 
people.  By  the  American  war  £121,267,993  was  added  to 
the  principal  of  the  debt  and  £601,500,343  during  the 
French  war.  These  items  stand  charged  in  the  account 
against  the  rulers.    There  were  other  heads  at  work  in  the  na- 


THE  BRITISH  EMPIRE  755 

tion,  which  wrought  out  far  different  resuhs.  In  1 763  Wedge- 
wood  estabHshed  the  great  Staffordshire  potteries,  in  1767 
Hargreaves  brought  out  the  spinning  jenny,  and  Compton's 
mule  was  finished  in  1779.  Cartwright  conceived  the  idea  of 
the  power  loom,  and  Watt's  steam  engine  was  made  in  1768. 
Through  these  great  aids  to  human  effort  the  English  peo- 
ple were  greatly  benefited,  the  productiveness  of  their  la- 
bors multiplied,  and  industries  and  trade  powerfully  stimu- 
lated. In  1776  Adam  Smith  published  his  Wealth  of  Na- 
tions, in  which  he  attacked  the  narrow,  selfish  policy  of  the 
government  with  respect  to  trade,  and  exhibited  in  its  true 
light  the  manifold  benefits  of  free  and  unrestricted  exchange 
of  products.  The  lessons  he  taught  were  not  learned  and 
digested  sufficiently  to  be  utiHzed  till  more  than  half  a  cen- 
tury had  elapsed,  but  the  time  came  when  England  profited 
immensely  from  the  freedom  of  her  ports.  In  181 5  the 
landholding  aristocracy,  true  to  their  inherited  narrow  sel- 
fishness, obtained  the  passage  of  a  law  prohibiting  the  im- 
portation of  corn  till  the  price  was  above  80s.  a  quarter.  With 
the  growth  of  manufacturing  interests  came  an  ever  increas- 
ing demand  for  a  larger  measure  of  political  influence  and 
better  compensation  for  the  mechanics  and  laborers.  The 
great  manufacturing  towns  of  Birmingham  and  Manchester 
were  without  representation  in  Parliament.  The  laboring 
classes  were  no  longer  willing  to  be  treated  as  of  no  import- 
ance, but  the  ruling  classes  resisted  their  demands  and  re- 
sorted to  force  to  repress  them.  A  great  meeting  having 
been  called  at  Manchester  in  1819,  an  attempt  was  made  to 
arrest  a  popular  speaker,  followed  by  a  charge  of  cavalry  on 
the  multitude,  the  killing  of  six  persons  and  wounding  of  a 
far  larger  number.  Free  speech  among  those  who  have  real 
grievances  to  complain  of  is  always  dangerous  to  those  who 
profit  from  the  wrongs,  and  in  this  case  an  effort  was  made 
to  suppress  it  by  force.  The  effect  of  the  cruel  slaughter  was 
to  further  the  cause  of  the  laborers  far  more  than  any  agi- 
tator's speech  could  have  done. 

In  the  reign  of  George  III  there  was  a  remarkable  in- 
crease in  parliamentary  activity.     Long  acts  were  passed  on 


756  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

a  great  variety  of  subjects,  though  with  but  a  faint  manifes- 
tation of  a  desire  for  justice.  By  Ch.  25-24,  George  III, 
the  King  was  empowered  to  name  six  commissioners  for  the 
affairs  of  India,  with  power  to  superintend  and  control  the 
civil  and  military  government  of  the  East  Indies.  The  details 
of  the  government,  however,  were  still  left  with  the  directors 
of  the  East  India  Company.  This  system  of  government  by 
a  corporation  organized  for  profit  had  grown  up  and  de- 
veloped with  the  aid  of  the  military  power  of  Great  Britain. 
The  profits  of  the  company  were  derived  partly  from  trade 
and  partly  from  taxation  of  the  natives  in  various  forms. 
The  great  British  Empire  of  the  East  was  started  by  the 
agents  of  a  corporation,  the  primary  purpose  of  which  was 
to  make  money.  The  exercise  of  political  and  governmental 
powers  grew  as  it  was  discovered  that  they  could  be  wielded 
profitably.  By  the  act  above  mentioned  the  British  govern- 
ment assumed  some  powers  of  supervision,  through  the  courts 
as  well  as  the  commission,  over  the  affairs  of  the  natives  and 
the  company.  In  the  published  statutes  at  large  the  acts  of 
the  reign  of  Edward  I,  called  the  great  law-giver,  cover  258 
pages:  those  of  Elizabeth's  reign  of  forty- five  years  413 
pages,  while  in  the  sixty  years  of  George  III  thirty-seven 
volumes,  many  of  them  of  large  size,  were  required  to  con- 
tain the  acts  of  Parliament.  It  might  be  thought  that  so 
much  legislation  would  result  in  radical  changes  of  the  sys- 
tem of  laws,  but  it  was  not  so.  A  very  large  portion  of  the 
space  filled  is  taken  up  with  tax  bills,  regulations  of  the 
excise,  duties  on  imports  and  exports,  land,  income  and  other 
taxes,  and  directions  as  to  the  use  of  public  moneys  in  re- 
pairing roads,  bridges,  harbors,  etc.  There  are  acts  in  great 
number  designed  to  regulate,  encourage  or  restrict  various 
lines  of  trade  and  manufacture  which  have  been  repealed, 
renewed  and  amended  to  meet  the  changing  views  of  Parlia- 
ment or  to  favor  the  men  or  party  in  power  at  the  time. 
It  may  occasion  surprise  to  find  how  much  has  been  attempted 
and  how  little  accomplished  by  the  many  laws  designed  to 
affect  trade  and  manufacturers.  Real  improvement  in  the 
laws  came  through  the  repeal  of  restrictive  acts.    Freedom  in 


THE  BRITISH  EMPIRE  757 

commercial  enterprise  has  stimulated  trade  and  industry  far 
more  than  any  or  all  the  laws  designed  to  direct  or  encourage 
them.  During  the  reigns  of  George  III  and  George  IV 
there  was  little  regard  paid  by  Parliament  to  the  interests  of 
the  toiling  multitude.  The  landed  and  moneyed  classes  were 
alone  considered,  though  near  the  close  of  the  reign  of  George 
IV  there  were  growing  demands  for  an  extension  of  the 
elective  franchise.  The  extreme  selfishness  and  wanton 
cruelty  of  the  ruling  class  is  well  illustrated  by  9  Geo.  i  ch. 
22  and  31  George  II,  ch.  42,  which  made  it  a  felony,  pun- 
ishable with  death,  to  break  down  the  mound  of  a  fish  pond 
whereby  any  fish  shall  escape,  or  to  cut  down  a  cherry  tree 
in  an  orchard.  The  indolent,  cruel  and  selfish  aristocracy 
did  not  hesitate  to  take  the  lives  of  the  poor  for  so  slight 
an  interference  with  the  unmerited  privileges,  which  the  law 
conferred  on  them  by  their  exclusive  license  to  fish  and  hunt 
and  their  artificial  claims  to  the  ownership  of  the  face  of 
the  earth. 

With  the  decay  of  the  feudal  system  and  the  growth  of 
the  power  of  Parliament  came  increased  severity  in  the  laws 
relating  to  the  punishment  of  crimes.  In  the  early  years 
the  death  penalty  was  never  inflicted  by  the  public  authority, 
but  only  by  the  relatives  of  the  murdered  man  in  cases  of 
homicide.  Coke  mentions  only  seven  capital  felonies,  homi- 
cide, rape,  burglary,  arson,  robbery,  theft  and  mayhem.  All 
these  were  originally  subject  to  benefit  of  clergy,  which  in 
those  times  meant  that  the  secular  courts  had  no  power  to 
punish  churchmen,  and  the  church  did  not  inflict  the  death 
penalty,  but  sought  to  purge  and  reform  the  offender.  The 
privileges  of  the  clergy  began  to  be  first  reduced  in  the  time 
of  Henry  VII,  being  taken  away  in  cases  of  petty  treason 
committed  in  the  murder  of  a  master.  Under  Henry  VIII  they 
were  further  restricted,  and  finally  in  1827  by  Sec.  6  Ch.  28-7- 
and  8  George  IV,  benefit  of  clergy  was  abolished,  and  by 
Sec.  7  the  penalty  was  taken  away,  except  in  cases  excluded 
from  benefit  of  clergy  or  made  capital  by  some  subsequent 
act.  Blackstone  says  (4  Com.  18)  that,  "among  the  va- 
riety of  actions  which  men  are  daily  liable  to  commit,  no 


758  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

less  than  one  hundred  and  sixty  have  been  declared  by  Act 
of  Parliament  to  be  felonies  without  benefit  of  clergy."  This 
may  possibly  give  an  exaggerated  idea  of  the  number  of 
capital  offenses,  for  many  particular  offenses  were  made  capi- 
tal by  Act  of  Parliament,  which  might  naturally  have  been 
included  under  some  general  head.  Ch.  27-9  George  I, 
known  as  the  Black  Act,  provided  that  if  any  persons  armed 
or  having  their  faces  blacked  or  being  otherwise  disguised, 
should  appear  in  any  forest,  etc.,  or  in  any  warren  or  place 
where  hares  or  rabbits  were  usually  kept,  or  in  any  high 
road,  open  heath,  common  or  down,  or  should  unlawfully  or 
wilfully  hunt,  wound,  kill,  destroy  or  steal  any  red  or  fal- 
low deer,  etc.,  they  should  be  guilty  of  felony  without  benefit 
of  clergy.  This  statute  Stephens,  in  his  History  of  the  Crim- 
inal Law  in  England,  says  creates  fifty-four  capital  offenses, 
yet  it  cannot  be  regarded  as  doing  more  than  make  it  a  felony 
to  trespass  on  any  game  preserve.  This  act  discloses  very 
pointedly  the  cruel  severity  of  the  gentry  of  England,  who 
to  gratify  their  passion  for  slaughtering  game  made  it  a 
deadly  offense  for  a  poor  man,  really  in  need  of  it  for  food, 
to  even  go  where  he  might  get  it,  notwithstanding  that  by 
nature  one  man  has  as  much  right  to  take  game  as  another. 
Most  of  the  severe  penal  statutes  were  designed  to  protect 
the  king,  the  nobility  and  the  great  landowners  in  that  to  which 
the  law  gave  them  an  artificial  claim.  Treason,  which  was 
merely  denial  or  resistance  of  the  claimed  right  to  rule,  was 
most  jealously  ferreted  out  and  cruelly  punished.  At  the  end 
of  the  seventeenth  century  of  the  crimes  designated  as  fel- 
onies without  benefit  of  clergy,  there  were  high  treason, 
petty  treason,  piracy,  murder,  arson,  burglary,  housebreaking 
and  putting  in  fear,  highway  robbery,  horse  stealing,  sheep 
stealing  of  a  value  above  is.  stealing  from  a  person  of  above 
the  value  of  is;  rape  and  abduction  with  intent  to  marry. 
The  whole  course  of  the  legislation  of  the  eighteenth  cen- 
tury tended  to  increase  rather  than  diminish  the  severity  of 
punishments,  and  no  other  country  prescribed  the  penalty  of 
death  for  so  many  petty  offenses  as  Great  Britain  during  that 
time.    It  is  a  noticeable  fact  also  that  a  very  large  part  of  the 


THE  BRITISH  EMPIRE  759 

crimes  are  such  as  the  unmerited  privileges  of  the  aristo- 
tocracy  invited.  In  acts  passed  in  1827,  1828  and  1830  the 
death  penalty  v^as  still  prescribed  for  robbery  by  force  or 
threats  to  accuse  of  an  infamous  crime,  sacrilege,  burglary, 
housebreaking  and  stealing  or  putting  any  person  in  the 
house  in  fear,  theft  of  £5  in  a  dv^elling,  stealing  horses,  sheep 
or  cattle,  arson,  riotously  demolishing  houses,  destroying 
ships,  exhibiting  false  signals,  murder,  attempts  to  murder  by 
poisoning,  stabbing,  shooting,  etc.,  administering  poison  to 
procure  abortion,  sodomy,  rape,  connection  with  a  girl  under 
ten  years  old;  forging  the  great  seal,  public  securities,  wills, 
bills  of  exchange  or  promissory  notes ;  making  false  entries 
in  certain  public  books  of  account,  and  forging  transfers  of 
stocks.  This  is  a  strange  list  of  capital  penalties  to  be  inflicted 
by  a  Christian  nation  in  the  nineteenth  century.  Since  then  it 
is  gratifying  to  note  that  the  course  of  legislation  has  been 
steadily  in  the  direction  of  repealing  these  savage  penalties, 
until  now  only  the  crimes  of  treason,  murder,  piracy  with 
violence,  and  arson  of  dockyards  or  arsenals  are  punishable 
with  death. 

The  growing  spirit  of  humanity  was  further  evidenced  by 
the  acts  3  and  4  William  IV,  ch.  73  and  5  and  6  William 
IV,  4  ch.  45  abolishing  slavery  in  the  British  colonies  and 
providing  payment  to  the  masters.  Doubtless  certain  private 
interests  were  promoted  by  the  large  expenditure  of  public 
money  in  payment  for  the  liberated  slaves,  but  the  general 
purpose  and  effect  of  the  acts  were  good.  The  slaves  were 
first  converted  into  apprentices  and  liberated  after  a  pre- 
scribed term  of  service  as  such,  not  to  extend  beyond  Aug. 
I,  1840.  Hours  of  labor  were  limited  to  firty-five  in  one 
week.  By  ch.  forty-five  2  William  IV,  many  important  re- 
forms in  the  constitution  of  the  House  of  Commons  were 
effected.  Boroughs  with  very  few  inhabitants,  which  had 
theretofore  had  representation,  were  deprived  of  it,  and  the 
great  manufacturing  towns  of  Manchester,  Leeds,  Birming- 
ham, Greenwich,  Sheffield  and  others  of  importance,  which 
theretofore  had  been  without  representation,  were  accorded 
two  members  each,  and  others  of  less  importance  one  each. 


76o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  elective  franchise  in  the  counties  was  extended  to  all 
adult  male  freeholders,  including  copyholders  having  lands 
of  the  clear  yearly  value  of  £io,  and  also  to  certain  tenants 
for  years  of  lands  yielding  £io  net  above  the  rent  reserved.  In 
the  boroughs  persons  occupying  as  owners  or  tenants,  houses 
of  the  rental  value  of  £io  per  year  were  allowed  to  vote  for 
members  of  Parliament.  The  overseers  of  the  poor  were 
made  registration  officers  and  required  to  prepare  lists  of 
voters  in  the  respective  counties  and  boroughs,  which  were 
subject  to  revision  by  barristers  named  by  the  judges  of  the 
King's  Bench.  The  expenses  of  the  polling  booths,  deputies 
and  clerks  in  charge  of  the  election  were  required  to  be  paid 
by  the  candidates,  a  provision  which  would  be  deemed  very 
objectionable  in  the  United  States.  In  1835  ^^  ^^t  was 
passed  as  Ch.  76-5  and  6  William  IV,  entitled  "An  act 
to  provide  for  the  Regulation  of  Municipal  Corporations  in 
England  and  Wales,"  by  which  a  general  system  of  municipal 
organization  in  substantially  all  principal  cities  and  towns 
except  London  was  substituted  for  the  special  charters  under 
which  they  had  been  governed  theretofore.  The  franchise 
for  the  election  of  municipal  officers  was  extended  to  all  adult 
males,  who  should  have  occupied  a  house  for  the  three  pre- 
ceding years  and  been  rated  and  have  paid  rates  for  the  relief 
of  the  poor  during  such  time.  The  municipal  government 
was  placed  under  the  control  of  a  mayor,  alderman  and 
councillors.  The  councillors  were  elected  by  the  burgesses 
by  signed  ballots,  and  from  their  number  the  aldermen  were 
chosen  by  the  councillors.  One-third  of  the  councillors  were 
to  be  chosen  annually  and  half  the  aldermen  every  three 
years.  The  mayor,  aldermen,  and  councillors  constituted  the 
council,  and  the  council  chose  a  mayor  annually.  The  election 
of  councillors  took  place  in  November,  and  in  March  two  audi- 
tors and  two  assessors  were  chosen.  The  council  had  super- 
vision of  the  public  property  of  the  city  and  charge  of  police 
affairs.  Though  the  elective  franchise  was  greatly  extended, 
a  property  qualification  of  £500  was  required  for  members  of 
the  council,  and  occupancy  of  land  and  payment  of  rates  was 
the  basis  of  the  qualification  of  voters. 


THE  BRITISH  EMPIRE  761 

It  would  be  hard  to  imagine  a  law  more  unjust  in  princi- 
ple than  that  by  which  taxes  were  imposed  on  the  importation 
of  food  into  a  country  usually  requiring  more  than  the  home 
product.  The  effect  of  such  taxation  is  necessarily  to  raise 
the  price  of  all  kinds  of  food  so  taxed,  whether  of  domestic  or 
foreign  production.  As  Parliament  was  dominated  by  the  great 
landowners,  who  were  interested  in  keeping  the  price  of  grain 
as  high  as  possible,  it  had  long  been  the  policy  of  Great  Britain 
to  collect  a  protective  duty  on  imported  grain.  In  1846  after 
a  great  contest  at  the  elections  over  this  system,  resulting  in 
a  majority  favorable  to  its  continuance,  a  famine  in  Ireland 
and  great  scarcity  of  food  in  Great  Britain  caused  the  minis- 
try to  propose  and  carry  through  a  repeal  of  the  tax.  The 
justice  and  good  policy  of  freedom  in  the  purchase  of  food 
has  been  so  obvious  and  the  good  effects  of  this  repeal  so 
generally  appreciated,  that  Great  Britain  has  steadily  pursued 
a  policy  of  throwing  off  restrictions  on  trade  ever  since.  The 
Sepoy  rebellion  in  India  in  1857,  which  was  suppressed  with 
much  bloodshed  and  barbarity,  led  to  the  assumption  by  the 
government  of  more  direct  rulership  in  Indi£ 

In  1 86 1  by  Ch.  67,  24  and  25  Vict,  the  government  of 
India  was  vested  in  the  Governor  General  and  a  Council,  con- 
sisting of  five  ordinary  members,  three  of  whom  were  to  be 
appointed  by  the  Secretary  of  State  for  India  in  Council  with 
the  concurrence  of  a  majority  of  the  members  present  at  the 
meeting  from  persons  who  had  been  in  the  service  in  India 
of  the  crown  or  company  and  crown  for  at  least  ten  years, 
and  the  remaining  two  by  the  Queen,  one  of  whom  should 
be  a  Scotch  barrister  of  five  years  standing,  and  the  com- 
mander-in-chief in  India  might  be  added  by  the  Secretary  of 
State  as  an  extraordinary  member.  When  the  council  as- 
sembled in  the  Presidencies  of  Fort  St.  George  or  Bombay, 
the  governor  of  the  presidency  became  an  extraordinary  mem- 
ber, and  when  in  the  other  provinces  having  a  Lieutenant 
Governor,  he  also  became  an  additional  councillor  for  the  pur- 
pose of  making  laws.  The  Governor  General  was  also  vested 
with  power  to  appoint  extraordinary  members  of  the  council 
for  the  purpose  only  of  making  laws,  not  less  than  six  nor 


762  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

more  than  twelve  in  number,  one  half  at  least  of  whom 
should  be  non-official  persons  and  hold  for  two  years.  The 
Governor  General  was  given  power  to  fix  the  times  and  places 
of  meetings  of  the  council  and  to  make  rules  for  the  conduct 
of  business.  He  might  assent  to  laws  or  refer  them  to  the 
crown,  but  no  law  took  effect  without  the  assent  of  the  Gov- 
ernor General  or  the  Queen,  and  the  Queen  might  disapprove 
of  a  law  assented  to  by  him  and  annul  it.  The  legislative 
power  so  conferred  was  full  and  complete  as  to  all  matters 
except  those  covered  by  certain  acts  of  parliament.  Similar 
councils  were  provided  for  in  the  presidencies,  to  be  presided 
over  by  the  governors.  Laws  enacted  by  them  were  subject 
to  the  approval  of  the  Governor  General  and  might  also  be 
annulled  by  the  Queen.  The  laws  so  made  were  operative 
only  in  the  presidency  for  which  enacted.  In  1873  provision 
was  made  for  winding  up  the  affairs  of  the  East  India  Com- 
pany by  Ch.  17-36  Vict,  and  for  payment  of  the  stockholders, 
whose  stock  was  rated  in  the  act  as  worth  £200  for  every 
£100  face.  In  tjiis  manner  was  terminated  a  most  remarkable 
form  of  combination  of  private  interests  and  governmental 
powers,  and  the  government  undertook  the  task  of  supervis- 
ing the  distribution  among  the  stockholders  of  the  proceeds 
of  the  great  private  enterprise,  which  had  resulted  in  sub- 
jecting the  vast  empire  of  India  with  its  hundreds  of  millions 
of  people  to  the  crown  of  Great  Britain.  For  some  gener- 
ations it  has  been  the  claim  and  especial  pride  of  Englishmen, 
that  theirs  was  a  government  of  laws,  established  by  a  repre- 
sentative Parliament  or  immemorial  custom  and  administered 
by  able  and  upright  judges.  Probably  more  power  has  been 
exercised  by  the  courts,  and  their  influence  has  been  more 
general  in  England  than  elsewhere  from  remote  times.  The 
common  law  of  England,  which  can  only  be  found  authorita- 
tively stated  in  the  decisions  of  the  courts,  has  been  often 
lauded,  especially  by  the  legal  profession,  and  sometimes  men- 
tioned as  the  perfection  of  human  reason.  The  courts  have 
enjoyed  the  profound  respect  of  the  people  generally,  and 
the  righteousness  of  their  decisions  has  seldom  been  publicly 
questioned.     Certain  it  is  that  there  until  recent  times,  the 


/ 

THE  BRITISH  EMPIRE  7^Z 

people  relied  more  on  the  courts  for  the  enforcement  of  their 
claims  of  right,  and  that  questions  of  law  were  given  more 
consideration  and  weight  than  in  the  countries  of  continental 
Europe.  It  cannot  be  denied  that  judicial  functions  have 
been  exercised  by  many  able  men  in  England  for  several  cen- 
turies, and  that  a  desire  to  do  justice  has  been  often  mani- 
fested by  them,  but  the  genius  of  the  •  whole  system  has 
required  steady  adherence  to  precedent  and  denied  the  judges 
liberty  to  do  justice  in  cases-  where  it  has  not  been  the  custom 
to  allow  it.  The  fundamental  purpose  in  early  times  was  the 
enforcement  of  the  privileges  of  the  landed  aristocracy,  and 
later  on  of  the  clergy  also.  Though  at  first  the  barons  main- 
tained their  dominion  over  the  people  by  force  of  arms  under 
a  theory  of  ownership  of  the  soil,  and  the  clergy  obtained, 
their  revenues  partly  through  land  tenure  and  partly  through 
enforced  contributions,  the  courts,  acting  in  accordance  with 
a  fixed  set  of  rules,  were  found  convenient  instruments  for 
holding  the  poor  in  subjection  and  settling  disputes  between 
the  privileged  classes  without  bloodshed.  The  ideas  on  which 
the  ancient  landed  nobility  based  their  ascendency  still  prevail, 
so  far  as  the  theory  of  land  titles  is  concerned,  and  the  claims 
of  the  clergy  to  compulsory  support  by  the  people  are  still 
recognized  in  a  modified  form.  The  liberalizing  influences, 
which  step  by  step  have  advanced  moral  standards,  have  come 
mainly  from  the  industrial  classes  and  those  engaged  in  legiti- 
mate enterprises  for  gaining  wealth.  Nowhere  else,  except 
perhaps  in  Holland,  has  there  been  such  a  general  disposition 
to  make  foreign  investments  and  promote  new  enterprises  for 
profit.  In  the  early  explorations  by  sea  all  classes  took  part, 
and  ever  since  then  there  have  always  been  opportunities  for 
men  of  ability  in  any  social  rank  to  gain  wealth,  and  having 
acquired  it  to  receive  protection  in  its  possession  from  the 
courts.  Though  using  the  most  clumsy  and  inconvenient  sys- 
tem of  money,  weights  and  measures,  the  British  nation  has 
always  had  a  remarkable  genius  for  computation  of  values  and 
profits,  and  as  an  aid  to  such  computations  to  gather  statistics 
and  information  of  all  kinds.  This  propensity  for  gathering 
information,  coupled  with  adherence  to  precedent  and  a  pro- 


764  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

found  respect  for  everything  British,  has  led  to  some  pecuHar 
results.  The  money  center  of  the  world  has  a  barbarous,  in- 
convenient and  uncouth  system  of  accounts,  using  pounds, 
shillings,  pence  and  farthings  to  express  values  and  sums  of 
money,  and  the  greatest  commercial  nation  on  earth  uses  units 
of  measurements  and  quantities  quite  incomprehensible  to 
many  people  instead  of  the  decimal  metric  system  in  use  on 
the  continent.  The  country  where  courts  were  most  regarded 
and  resorted  to,  for  centuries  had  a  system  of  courts  and 
methods  of  procedure  in  the  disposition  of  causes  so  intricate 
and  complicated,  that  a  suitor  could  seldom  tell  to  what  court 
he  should  apply  for  relief  nor,  having  chosen  his  court,  could 
he  safely  rely  on  the  ability  of  his  lawyer  to  follow  intricate 
legal  forms  and  get  to  a  decision  of  the  case  on  its  merits. 
There  were  ecclesiastical  courts,  lay  courts,  local  courts  of 
special  limited  and  peculiar  jurisdiction,  admiralty,  exchequer, 
probate,  bankruptcy  and  other  courts  dealing  with  special 
subjects;  then  there  was  the  great  division  into  law  and  equity 
with  power  in  the  latter,  in  a  great  line  of  cases,  to  step  in 
and  deprive  a  suitor  of  his  rights  under  the  law,  because  other 
rules  called  rules  of  equity  conflicted  with  the  law.  Thus  in 
the  early  days  a  suit  on  a  bond  at  law  was  always  for  the  full 
penalty,  though  the  bond  in  terms  provided  that  it  should  be 
void  on  payment  when  due  of  a  less  sum  which  it  was  given 
to  secure,  and  the  law  courts  always  gave  judgment  for  the 
full  penalty.  But  the  chancellor,  sitting  as  a  court  of  equity, 
would  always  enjoin  the  plaintiff  from  collecting  more  on 
his  judgment  than  the  amount  of  money  really  due.  Courts 
of  law  could  give  no  relief  from  mistakes  in  written  contracts. 
Courts  of  equity  undertook  to  reform  them  in  accordance 
with  the  original  purpose  of  the  parties.  The  courts  of  law 
for  centuries  paid  more  regard  to  form  than  to  right.  The 
forms  of  pleadings,  the  choice  of  remedies  and  mode  of  pro- 
cedure were  stumbling  blocks  over  which  any  suitor  was 
liable  to  fall.  Following  the  rule  that  it  is  for  the  court  to 
decide  only  the  exact  question  before  it,  the  plaintiff  fre- 
quently failed  to  obtain  relief  because  his  attorney  had  chosen 
the  wrong  form  of  action,  but  the  court  would  not  indicate  the 


THE  BRITISH  EMPIRE  765 

right  one,   and  often  a  second  suit  would  result  similarly. 
The  choice  of  courts  might  lead  to  the  same  result,  if  the 
wrong  one  was  selected  and  he  was  forced  to  begin  anew. 
There  was  the  court  of  ''piepoudre,''  dusty  feet,  held  by  the 
steward  of  the  person  entitled  to  the  tolls  of  a  fair  or  market, 
with  jurisdiction  only  to  decide  causes  arising  from  dealings 
at  that  fair  or  market,  a  very  summary  court,  which  generally 
decided  causes  on  the  very  day,  they  arose.     The  court  baron 
was  incident  to  every  manor,  held  by  the  steward  within  the 
manor,   and   dealt  with  the   rights   of   tenants   of   copyhold 
-estates.     There  was  also  a  common  law  court  bearing  the 
same  name,  held  by  the  freeholders  of  the  manor  with  the 
steward  as  registrar,  with  jurisdiction  over  rights  to  lands 
within  the  manor  and  some  personal  actions  involving  less 
than  forty  shillings.     The  hundred  court  was  similarly  con- 
stituted  with   similar   jurisdiction   over   the   hundred.      The 
-county  court,  presided  over  by  the  sheriff,  had  a  more  general 
jurisdiction  over  minor  causes  and  was  much  more  frequently 
resorted  to.    In  early  times  it  was  a  court  of  much  importance, 
presided  over  by  the  bishop  and  ealdorman,  with  the  principal 
men  of  the  shire  as  judges.    The  court  of  Exchequer  Chamber 
was  originally  vested  with  jurisdiction  over  causes  for  the 
collection  of  the  king's  revenues  and  looked  after  the  reve- 
nues of  the  crown,  but  it  afterward  came  to  exercise  both 
common  law  and  equity  jurisdiction  in  nearly  all  kinds  of 
causes.     As  a  court  of  equity  it  was  made  up  of  the  lord 
treasurer,  the  chancellor  of  the  exchequer,  the  chief  baron  and 
three  puisne  barons.     The  treasurer  and  chancellor  took  no 
part  in  the  exercise  of  the  common  law  jurisdiction  of  this 
court.     Its  jurisdiction  of  causes  between  private  persons  was 
based  on  the  fiction,  that  the  complainant  was  a  debtor  to  the 
king  and  his  ability  to  pay  was  affected  by  the  wrong  of 
which  he  complained.     Superior  in  rank  to  all  the  foregoing 
courts  was  the  court  of  Common  Pleas,  sitting  at  Westminster 
with  general  jurisdiction  over  common  law  actions  between 
private  persons.     Above  this  and  highest  of  the  common  law 
courts  was  that  of  King's  Bench,  composed  in  Blackstone's 
time  of  a  chief  justice  and  three  puisne  justices,  with  general 


766  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

jurisdiction  of  all  common  law  cases,  civil  and  criminal,  and 
general  supervision  of  all  inferior  courts  and  power  to  reverse 
their  judgments.  The  king  himself  sat  in  this  court  in  early 
times  and  was  regarded  as  personally  present  by  a  legal  fiction 
in  all  later  times.  It  had  appellate  jurisdiction  by  writ  of 
error,  not  only  in  causes  arising  in  Great  Britain,  but  also 
from  the  court  of  King's  Bench  in  Ireland.  The  High  Court 
of  Chancery,  presided  over  by  the  chancellor  or  lord  keeper 
of  the  great  seal,  the  highest  officer  under  the  king,  was  one 
of  very  extensive  powers.  It  exercised  common  law  powers 
in  a  limited  class  of  cases  and  was  the  office  of  justice  from 
which  all  original  writs  and  commissions  under  the  great  seal 
were  issued.  Its  equity  jurisdiction  was  much  more  extensive 
and  important  than  its  common  law  powers.  In  early  times 
it  is  said  that  the  chief  judicial  employment  of  the  chancellor 
was  in  devising  new  writs,  to  afford  remedies  where  none 
were  afforded  by  the  writs  in  use,  but  later  by  subpoena  the 
defendant,  against  whom  complaint  was  made  and  equitable 
relief  sought,  was  required  to  appear  before  the  chancellor 
and  the  cause  was  determined  by  him.  Blackstone  gives  the 
principal  credit  for  the  establishment  of  the  system  of  equity 
practice  to  Heheage  Finch,  Earl  of  Nottingham,  who  became 
chancellor  in  1673.  Above  all  these  courts  was  the  House  of 
Lords  from  which  writs  of  error  might  issue  to  the  Exchequer 
Chamber,  the  King's  Bench  and  the  High  Court  of  Chancery, 
but  which  had  no  original  jurisdiction.  The  great  courts  had 
their  permanent  seats  at  London,  but  circuit  courts  were  held 
by  the  king's  special  commission  in  all  parts  of  the  kingdom 
for  the  trial  of  civil  and  criminal  causes  by  jury  and  the  de- 
termination of  issues  of  fact.  These  courts  were  commonly 
called  courts  of  assize  and  nisi  prius.  Besides  these  were  the 
ecclesiastical,  military  and  maritime  courts  and  a  great  num- 
ber of  courts  of  special,  local  and  limited  jurisdiction,  in  the 
cities  and  towns,  at  the  universities  and  elsewhere,  to  describe 
all  of  which  would  consume  unnecessary  space. 

In  1873  a  comprehensive  reform  of  the  whole  system  of 
courts  and  procedure  was  undertaken  by  parliament.  Ch.  66- 
36  and  37  Vict,  consolidated  the  old  High  Court  of  Chancery, 


THE  BRITISH  EMPIRE  7(>7 

Court  of  King's  Bench,  Court  of  Common  Pleas,  Court  of 
Exchequer,  High  Court  of  Admiralty,  Court  of  Probate, 
Court  for  Divorce  and  Matrimonial  Causes,  and  London  Court 
of  Bankruptcy  into  one  Supreme  Court  of  Judicature  in  Eng- 
land, divided  into  the  High  Court  of  Justice  and  the  Court 
of  Appeal.  The  High  Court  of  Justice  is  constituted  of  the 
Lord  Chancellor,  Lord  Chief  Justice,  the  Master  of  the  Rolls, 
Chief  Justice  of  the  Common  Pleas,  Chief  Baron  of  the  Ex- 
chequer, the  Vice  Chancellors,  Judge  of  the  Court  of  Probate 
and  of  the  Court  of  Divorce  and  Matrimonial  Causes,  the 
puisne  judges  of  the  Courts  of  King's  Bench  and  Common 
Pleas,  the  Junior  Barons  of  the  Exchequer,  and  the  Judge  of 
the  High  Court  of  Admiralty;  except  such  of  them  as  are 
made  ordinary  judges  of  the  Court  of  Appeal.  Vacancies 
afterward  occurring  are  to  be  filled  by  appointment  by  the 
crown  from  persons  possessing  the  prescribed  qualifications. 
The  Court  of  Appeal  is  constituted  of  five  ex-officio  judges 
thereof,  and  so  many  ordinary  judges  not  exceeding  nine  as 
the  crown  may  appoint.  The  ex-officio  judges  are  the  Chan- 
cellor, Chief  Justice,  Master  of  the  Rolls,  Chief  Justice  of 
the  Common  Pleas  and  Chief  Baron  of  the  Exchequer.  The 
judges  hold  office  for  life,  subject  to  removal  by  the  king  on 
address  by  both  houses  of  Parliament.  Judges  are  disqualified 
from  sitting  in  the  House  of  Commons.  The  ordinary  judges 
are  allowed  salaries  of  £5,000  per  year,  and  those  of  higher 
rank  larger  sums.  Three  of  the  judges  are  allowed  secre- 
taries with  salaries  of  £500  per  annum  and  all  are  given  two 
clerks  with  salaries  respectively  of  £400  and  £200. 

All  the  jurisdiction  exercised  by  the  various  courts  so  con- 
solidated and  divers  others  named  in  the  act  is  vested  in  the 
Supreme  Court  of  Judicature,  and  all  the  judges  are  author- 
ized to  administer  law  and  equity  in  any  cause  coming  before 
them.  Though  the  distinctions  between  the  rulers  of  law  and 
of  equity  are  still  preserved,  the  courts  are  authorized  to  apply 
them  in  any  case  and  to  administer  both  in  the  same  action. 
All  the  old,  narrow,  technical  rules  which  occasioned  so  many 
failures  of  justice  were  swept  away,  and  a  simple  and  com- 
prehensive system  established  with  modes  of  procedure  de- 


768  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

signed  to  afford  speedy  remedies.  Plain  rules  for  the 
distribution  of  business  are  laid  down,  with  power  in  the 
court  to  correct  mistakes  with  reference  to  the  division  of  the 
court  before  which  the  cause  is  to  be  heard  and  to  permit  all 
amendments  calculated  to  promote  justice.  Appeals  may  be 
taken  from  the  High  Court  of  Justice  to  the  Court  of  Appeal. 
In  1875  a  further  act  was  passed,  Ch.  77-38  and  39  Vict.,  to 
more  fully  carry  into  effect  the  reforms  inaugurated  by  the 
act  of  1873.  Some  slight  modifications  of  the  number  of 
judges  and  constitution  of  the  courts  were  made,  and  the 
London  Court  of  Bankruptcy  was  restored  as  a  distinct  court, 
subject  to  appeal  to  the  Court  of  Appeal.  Provision  was 
made  for  regulating  the  holding  of  assizes  and  sessions  for 
the  trials  of  issues  of  fact  by  Orders  in  Council  and  for  the 
regulation  of  various  matters  by  rules  of  court  to  be  sub- 
mitted to  parliament  and  subject  to  be  annulled  by  it.  The 
Rules  of  Court  appended  to  the  act  prescribe  the  practice  to 
be  followed  in  the  courts.  Every  action  in  the  High  Court 
is  commenced  by  summons,  on  which  must  be  endorsed  a 
statement  of  the  nature  of  the  claim  made  in  the  most  concise 
and  general  terms  and  the  address  of  the  plaintiff's  solicitor. 
The  summons  may  be  issued  out  of  any  registry  and  the  cause 
assigned  to  any  division  of  the  court  and  to  such  judge  by 
name  as  the  plaintiff  may  think  fit,  subject  to  the  power  of 
the  court  to  transfer  it  on  motion  to  any  other  division.  The 
defendant  is  required  to  enter  his  appearance  in  eight  days 
after  service  of  the  summons,  and,  except  in  certain  cases 
provided  for  in  the  rules,  the  appearance  must  be  entered  in 
London,  and  if  so  entered  there  the  cause  will  proceed  there. 
If  a  defendant  resides  in  the  district  from  the  registry  of 
which  the  summons  issued,  he  shall  appear  in  that  district 
registry.  If  no  appearance  is  made  by  the  defendant,  final 
judgment  may  be  rendered  against  him.  All  persons  in  any 
manner  interested  in  the  controversy  may  be  made  parties, 
and  great  liberality  is  allowed  in  joining  different  causes  of 
action,  subject  to  the  power  of  the  court  to  try  different  issues 
separately  where  deemed  best.  After  the  appearance  of  the 
defendant,  unless  he  states  that  he  does  not  require  a  state- 


THE  BRITISH  EMPIRE  7^9 

ment  of  the  complaint,  the  plaintiff  must  within  the  time 
fixed  by  the  rules  deliver  to  the  defendant  his  statement  of 
complaint  and  the  relief  demanded;  the  defendant  then  de- 
livers to  the  plaintiff  a  statement  of  his  defense,  to  which  the 
plaintiff  may  reply.  Where  questions  of  law  are  presented  by 
the  facts  stated  in  a  pleading,  the  court  may  proceed  to  con- 
t^ider  and  determine  the  law  questions  before  hearing  proof 
as  to  the  facts.  All  appeals  to  the  Court  of  Appeal  are  by  way 
of  rehearing,  and  no  bill  of  exception  is  required  or  other  pro- 
ceeding in  error  in  ancient  form.  The  court  on  hearing  the 
appeal  does  not  review  the  errors  committed  by  the  trial  court, 
but  may  allow  amendments,  hear  further  evidence,  give  any 
judgent  and  make  any  order  that  ought  to  have  been  made 
by  the  trial  court.  The  original  papers  and  the  notes  of  evi- 
dence taken  at  the  former  hearing  may  be  used.  The  various 
points  of  practice  are  most  fully  and  clearly  covered  by  the 
rules,  and  to  them  are  appended  forms  of  the  various  writs 
and  pleadings  to  be  used,  framed  in  simple  and  pointed  lan- 
guage. After  having  had  the  most  complex  and  in  many 
respects  absurd  and  unreasonable  system  of  practice  in  its 
courts,  England  can  now  fairly  claim  to  have  the  simplest, 
most  comprehensive  and  excellent  system  of  courts  and  code 
of  practice  of  any  country  in  the  world.  By  Ch.  59-39  and 
40  Vict,  appeals  are  allowed  from  the  Court  of  Appeal  in 
England  and  certain  courts  in  Scotland  and  Ireland  to  the 
House  of  Lords.  No  appeal  can  be  determined  in  the  House 
of  Lords  unless  there  are  present  three  of  the  following 
persons :  The  Chancellor,  the  Lords  of  Appeal  in  Ordinary 
and  such  Peers  of  Parliament  as  hold  or  have  held  high 
judicial  offices.  The  Queen  was  authorized  to  appoint  two 
Lords  of  Appeal  in  Ordinary  with  salaries  of  £6,000  per  year. 
The  House  of  Lords  was  authorized  to  sit  during  any  pro- 
rogation of  Parliament  or  dissolution  if  authorized  by  the 
queen  ^or  the  purpose  of  hearing  causes.  These  acts  were 
followed  by  that  of  55  and  56  Victoria  Ch.  43,  which  estab- 
lishes a  uniform  system  of  county  courts  and  prescribes  a 
simple  system  of  procedure  therein.  The  Lord  Chancellor  is 
authorized  from  time  to  time  to  appoint  not  exceeding  sixty 


770  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

judges  for  these  courts.  Provision  is  made  for  the  abolition 
of  manorial  and  many  other  inferior  courts,  and  the  jurisdic- 
tion of  most  causes  involving  small  sums  is  conferred  on  the 
county  courts.  While  the  excellence  of  this  code  is  so  marked, 
the  fact  should  not  be  overlooked  that  the  constitution  of  all 
the  courts  still  accords  v^ith  the  aristocratic  ideas  which  have 
so  long  dominated  in  England.  The  unearned  and  unmerited 
priviliges  enjoyed  by  the  nobility,  the  landed  and  moneyed 
aristocracy,  are  not  likely  to  be  diminished  by  any  action  of 
the  courts.  The  judges  are  paid  excessive  salaries  and  thereby 
led  to  believe  in  the  appropriation  of  public  moneys  for  the 
benefit  of  the  ruling  class  in  unreasonable  ways.  The  highest 
judicial  officers  are  always  added  to  the  ranks  of  the  titled 
nobility,  and  the  final  decision  of  all  questions  of  law  is  still 
vested  in  the  House  of  Lords,  which  stands  as  the  representa- 
tive and  beneficiary  of  the  injustice  of  the  governmental 
system,  and  should  be  rated  morally  as  an  exponent  of  a  mori- 
bund system  of  oppression.  It  has  less  of  the  spirit  of  prog- 
ress and  of  the  sense  of  natural  justice  due  from  man  to  man 
and  from  the  state  to  its  citizens  than  any  other  great  repre- 
sentative body  in  England.  The  evil  of  conferring  this  final 
jurisdiction  on  a  body  wholly  made  up  of  persons  accorded 
special,  and  for  the  most  part  wholly  unmerited  privileges 
and  distinction,  is  not  in  practice  nearly  so  great  as  might  be 
expected,  for  the  causes  are  decided  mainly  by  the  trained 
judges,  who  in  matters  relating  to  trade  and  commerce,  on 
which  the  prosperity  of  Great  Britain  rests,  exhibit  a  most 
enlightened  sense  of  justice. 

There  is  still  another  tribunal,  unique  in  its  composition 
and  functions,  which  was  established  by  Ch.  41,  3  and  4 
William  IV,  in  1833  for  the  determination  of  appeals  from 
India  and  the  various  colonies  and  dependencies  of  the  British 
Empire.  It  is  styled  "The  Judicial  Committee  of  the  Privy 
Council,"  and  as  first  established  was  made  up  of  the  President 
of  the  Privy  Council,  the  Lord  Chancellor  and  such  other 
members  of  the  Privy  Council  as  shall  hold  or  have  held  the 
office  of  Lord  Keeper  or  First  Commissioner  of  the  Great 
Seal,  Chief  Justice  of  the  King's  Bench,  Master  of  the  Rolls, 


THE  BRITISH  EMPIRE  771 

Vice  Chancellor  of  England,  Lord  Chief  Justice  of  the  Com- 
mon Pleas,  Lord  Chief  Baron  of  the  Court  of  Exchequer, 
Judge  of  the  Prerogative  Court  of  the  Archbishop  of  Canter- 
bur}^,  Judge  of  the  High  Court  of  Admiralty,  Chief  judge  of 
the  Court  of  Bankruptcy,  and  the  King  might  appoint  two 
others.  At  least  four  of  these  were  required  to  be  present  at 
the  hearing  of  a  cause.  By  the  Act  passed  in  1908,  8  Edw. 
7,  ch.  51,  persons  having  held  the  office  of  Chief  Justice  of  the 
High  Court  of  India  and  some  others  designated  in  the  act, 
being  members  of  the  Privy  Council,  were  added  to  the  list. 
This  tribunal  has  no  jurisdiction  of  appeals  from  any  domestic 
tribunals,  but  only  from  the  colonies  and  dependencies.  Con- 
troversies are  decided  by  this  tribunal  in  accordance  with  the 
law  of  the  place  where  they  arose  which  is  applicable  to  them, 
whether  it  be  the  Code  of  Manu  or  the  Koran  in  India,  or  the 
Acts  of  the  Canadian,  Australian,  New  Zealand  or  other 
colonial  Parliament.  The  determination  of  the  Committee  is 
put  in  the  form  of  a  report  on  the  case  but  has  all  the  force 
and  effect  of  a  judgment,  and  Sec.  21  of  the  Act  of  1833 
provides  for  carrying  it  into  execution. 

Most  of  the  leading  nations  of  Europe  and  America  have 
recognized  the  duty  of  providing  for  the  education  of  the 
people  as  resting  on  the  government.  Though  England  has 
long  had  universities  of  very  high  rank  and  many  schools  of 
various  degrees  of  usefulness,  it  has  never  established  a  com- 
plete system  of  free  schools.  The  elementary  education  act 
of  1876  Ch.  79-39  and  40  Vict,  makes  it  the  duty  of  parents 
to  cause  their  children  to  be  instructed  in  reading,  writing  and 
arithmetic  and  provides  for  public  assistance  in  the  payment 
of  tuition  to  the  amount  of  3d.  per  week,  where  parents  not 
paupers  are  unable  to  pay.  Excuses  for  failure  to  so  educate 
are  defined  by  statute,  among  which  is  one  that  there  is  no 
public  school  within  two  miles.  By  subsequent  acts  many 
further  improvements  have  been  made.  From  an  early  period 
England  has  been  perhaps  as  well  supplied  with  private  schools 
as  any  country,  and  the  education  of  children  has  always  been 
looked  on  as  mainly  a  private  concern  of  parents.  People  of 
wealth  have  generally  paid  much  attention  to  the  instruction 


772  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  their  own  children,  but  the  pubhc  poHcy,  which  provides 
instruction  for  all  at  public  expense  and  enforces  attendance^ 
has  never  been  fully  adopted.  Still  the  improvement  in  late 
years  has  been  very  marked,  and  the  United  Kingdom  of 
Great  Britain  and  Ireland  now  ranks  in  average  attendance  at 
school  below  only  Scandinavia,  Germany,  Switzerland  and  the 
United  States.  Ch.  87-38  and  39  Vict,  entitled  ''An  act  to 
simplify  Titles  and  facilitate  the  Transfer  of  Land  in  Eng- 
land," provides  for  the  registration  of  land  titles  and  all 
interests  and  encumbrances  on  freehold  lands  and  for  the 
determination  by  a  registrar  as  to  the  ownership  of  lands. 
This  is  not  a  recording  act,  in  the  sense  in  which  the  term  is 
used  in  America,  but  makes  provision  for  a  record  showing 
the  present  ownership  of  the  land  and  the  encumbrances 
thereon.  It  is  a  very  radical  change  from  the  ancient  system 
of  transfers  by  verbose  instruments,  but  aside  from  affording 
evidence  of  title  it  makes  no  change  in  the  land  laws  of  the 
kingdom.  Though  intended  to  simplify,  the  peculiarities  of 
English  land  tenure  make  necessary  elaborate  and  rather  com- 
plex and  confusing  regulations,  including  an  appeal  to  the 
courts  for  the  determination  of  disputed  titles.  No  change 
has  been  made  in  the  rules  of  inheritance  or  the  theory  of 
land  tenure.  Ch.  36-38  and  39  Vict.  Artizans  and-  Laborers 
Dwellings  Act,  1875,  makes  provision  for  the  improvement 
of  unsanitary  districts  in  the  cities  in  England,  and  Ch.  49 
of  same  session  in  Scotland  also,  in  accordance  with  a  plan 
proposed  by  the  local  authorities  and  ratified  by  Parliament: 
for  condemnation  of  the  grounds,  where  the  owners  do  not  con- 
sent to  make  the  improvement,  and  for  the  prosecution  of  the 
work  at  public  expense.  The  details  of  each  improvement  are 
to  be  worked  out  by  the  local  authority  according  to  the  needs 
of  the  particular  district,  no  general  system  being  attempted. 
The  general  purpose  of  the  act  is  a  most  excellent  one,  and 
a  most  difficult  problem  has  been  dealt  with  in  a  manner  calcu- 
lated to,  and  which  in  fact  has  already  resulted  in  much 
alleviation  of  the  miseries  of  the  dwellers  in  overcrowded 
sections  of  the  great  cities. 

In  its  institutions  for  higher  education  Great  Britain  is  even 


THE  BRITISH  EMPIRE  m 

farther  behind  the  other  leading  nations,  having  but  eleven 
universities  v^ith  13,400  students,  to  twenty-one  in  Germany 
with  26,680  students  and  three  hundred  and  sixty  in  the 
United  States  with  60,000  students.  In  no  other  Christian 
country  is  wealth  so  unequally  distributed.  The  late  Queen 
was  granted  an  income  of  £385,000  besides  the  revenues  of 
the  duchy  of  Lancaster  of  £50,000  per  year,  and  other  mem- 
bers of  the  royal  family  received  £252,000,  in  return  for  which 
no  valuable  public  service  was  required.  These  expenditures 
are  merely  to  maintain  the  idea  of  united  authority  and  the 
display  of  royalty.  Mulhall  states  the  incomes  of  the  people 
as  follows:  Gentry  222,000  famihes  with  average  incomes 
of  £1,500,  amounting  annually  to  £333,000,000.  Middle, 
604,000  families  with  an  average  income  of  £400.  Trades 
people  1,220,000  families  with  average  incomes  of  £200  and 
working  people  4,474,000  with  incomes  of  £97  per  year.  Be- 
low these  there  were  in  1889,  1,015,000  paupers  and  25,100 
criminals  charged  on  the  public.  Though  this  showing  is  an 
exceedingly  strong  impeachment  of  the  general  system  pre- 
vailing, there  has  been  a  marked  improvement  in  the  condi- 
tion of  the  working  classes  during  the  last  century.  The  last 
half  of  the  century  has  been  a  period  of  great  moral  progress 
and  many .  admirable  reforms.  Popular  representation  is  no 
longer  altogether  mythical.  The  election  laws  go  into  many 
elaborate  details  but  speaking  generally  the  elective  franchise 
for  members  of  the  House  of  Commons  is  now  extended  to 
freeholders  owning  property  of  the  clear  rental  value  of  40s.. 
per  year  and  householders,  and  lodgers  paying  an  annual  rent 
of  £10  and  to  some  other  householders  and  lodgers  who  pay 
taxes,  and  the  voting  is  by  secret  ballot.  As  we  haye  seen 
the  school  system  has  been  greatly  improved,  and  while  in 
1830  at  the  time  of  the  establishment  of  the  Board  of  Educa- 
tion they  were  allowed  but  £30,000  to  expend  on  schools,  the 
expenditures  of  1906  are  given  at  £22,000,000. 

Reference  is  often  made  to  the  British  constitution,  and 
judging  from  recent  history  no  country  has  a  more  firmly 
settled  form  of  government,  yet  there  is  in  fact  no  written 
constitution,  and  the  limitations  on  the  powers  of  the  king, 


774  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  Parliament  and  the  officials  exercising  authority  under 
them  are  nowhere  clearly  and  authoritatively  defined.  Though 
the  king  now  is  generally  regarded  as  a  mere  symbol  of 
authority  in  fact  exercised  by  the  leaders  of  the  party  having 
a  majority  in  the  House  of  Commons,  his  ancient  prerogatives 
have  never  been  formally  annulled.  His  assent  is  necessary 
to  every  act  of  Parliament,  he  is  the  fountain  of  honor  and 
vested  with  power  to  appoint  to  the  great  offices.  It  is  through 
his  general  sovereignty  that  the  theory  of  unity  of  the  vast 
colonial  empire  is  maintained.  A  king,  disposed  to  rule  in 
fact,  would  have  ample  basis  of  law  for  the  exercise  of  his 
authority.  The  marked  peculiarity  of  the  British  government, 
however,  is  that  this  very  indefiniteness  in  its  constitution  ad- 
mits of  the  adaptation  of  the  governmental  system  to  the 
peculiar  conditions  prevailing  in  different  parts  of  the  empire. 
The  United  Kingdom  is  ruled  in  accordance  with  the  laws 
•enacted  by  Parliament,  and  generally  legislation  is  moulded 
by  the  elective  branch,  the  House  of  Commons.  The  refusal 
of  the  House  of  Lords  to  assent  to  tax  bills  and  other  legis- 
lation passed  by  the  Commons  occasioned  the  Parliament  Act 
of  191 1  below  mentioned.  In  no  recent  instance  has  the  king 
refused  his  concurrence.  In  practice  the  Ministry,  represent- 
ing the  majority  party  of  the  Commons,  introduces  the  im- 
portant bills  as  government  measures,  and  the  defeat  of  such 
measures  is  usually  followed  by  the  resignation  of  the  ministry 
thus  left  without  the  support  of  Parliament.  The  nominal 
head  of  the  whole  empire  is  the  king,  the  actual  head  is  the 
cabinet,  which  may  be  made  up  of  the  First  Lord  of  the 
Treasury  (Prime  Minister),  the  Lord  Chancellor  (President 
of  the  House  of  Lords),  the  Chancellor  of  the  exchequer,  the 
Lord  President  of  the  Council,  and  the  Secretaries  of  State 
for  the  following  departments,  Home,  Foreign  Affairs,  Col- 
onies, War,  and  India,  the  first  Lord  of  the  Admiralty,  the 
President  of  the  Board  of  Trade,  the  President  of  the  Local 
Government  Board,  the  Postmaster  General,  the  first  Commis- 
sioner of  Works,  Vice-President  of  the  Council  of  Education, 
the  Chief  Secretary  of  the  Lord  Lieutenant  of  Ireland,  the 
Secretary  for  Scotland  and  the  Chancellor  of  the  Duchy  of 


THE  BRITISH  EMPIRE  775 

Lancaster.  The  constitution  of  the  cabinet  has  never  been 
regulated  by  any  act  of  Parhament,  and  it  has  varied  in  re- 
cent years  in  the  number  of  persons  included  in  it,  the  first 
nine  being  nearly  always  included  and  one  or  more  of  the 
others  often  omitted.  In  theory  and  historical  continuity  these 
are  the  counsellors  and  advisers  of  the  king,  chosen  by  him 
to  assist  in  the  government  of  the  kingdom;  in  fact  they  are 
the  ruling  power,  not  only  at  home,  but  also  in  those  parts  of 
the  empire  ruled  from  England.  They  lead  the  majority  in 
Parliament  and  in  the  most  essential  particulars  dictate  the 
legislation.  They  are  inferior  to  the  House  of  Commons  only 
from  the  fact  that  they  are  at  all  times  dependent  on  its  sup- 
port. A  vote  of  want  of  confidence  in  the  ministry  or  the 
defeat  of  a  government  measure  necessitates  the  retirement 
of  the  persons  filling  the  cabinet  positions  and  the  choice  of 
others  having  the  confidence  of  the  House.  The  number  of 
members  of  the  House  of  Lords  fluctuates,  being  515  in  1898, 
including  a  varying  number  of  princes  of  the  blood  royal,  two 
archbishops,  twenty-four  bishops,  sixteen  Scottish  peers, 
elected  for  each  parliament  by  the  peers  of  Scotland,  twenty- 
eight  Irish  Peers  elected  for  life,  and  the  balance  peers  of  the 
United  Kingdom.  The  House  of  Commons  then  had  670 
members  elected  from  the  constituent  countries  as  follows: 
England  465,  Wales  thirty,  Scotland  seventy-two,  and  Ireland 
103.  This  gives  to  England  a  clear  majority  over  all,  and  no 
measure  can  pass  without  English  support. 

Repeated  refusals  of  the  House  of  Lords  to  concur  in  the 
passage  of  acts  sent  up  from  the  House  of  Commons  after 
popular  approval  of  the  acts  had  been  given  through  dissolu- 
tion and  election  of  new  members  of  the  House,  led  to  an 
important  change  in  the  constitution  in  191 1.  The  Parliament 
Act,  I  Geo.  V.  ch.  13,  makes  provision  for  regulating  the 
relations  between  the  two  Houses  of  Parliament.  The  Pre- 
amble states  that  it  is  intended  to  substitute  for  the  House 
of  Lords  a  Second  Chamber  constituted  on  a  popular,  instead 
of  an  hereditary,  basis,  but  that  such  substitution  cannot  be 
immediately  brought  into  operation;  that  provision  will  here- 
after require  to  be  made  in  a  measure  effecting  such  substitu- 


^^(i         evolution  of  governments  and  laws 

tion  for  limiting  and  defining  the  powers  of  such  Second 
Chamber,  but  that  it  is  expedient  to  make  such  provision  as 
appears  in  the  Act  for  restricting  the  existing  powers  of  the 
House  of  Lords. 

If  a  money  bill  which  has  been  passed  by  the  House  of 
Commons  and  sent  up  to  the  House  of  Lords  at  least  one 
month  before  the  end  of  the  session,  is  not  passed  by  the 
House  of  Lords  without  amendment  within  one  month  after 
it  is  so  sent  up,  it  shall  unless  the  House  of  Commons  direct 
to  the  contrary,  be  presented  to  the  Sovereign  and  become  an 
Act  of  Parliament  on  receiving  the  Royal  Assent,  notwith- 
standing that  the  House  of  Lords  has  not  consented  to  it. 
The  act  defines  what  are  money  bills  and  provides  for  a  cer- 
tificate by  the  Speaker  of  the  House  which  is  conclusive  of 
the  character  of  the  bill. 

If  a  public  bill  (other  than  a  money  bill  or  a  bill  extending 
the  maximum  duration  of  Parliament  beyond  five  years)  is 
passed  by  the  House  of  Commons  in  three  successive  sessions 
(whether  of  the  same  Parliament  or  not)  and,  having  been 
sent  up  to  the  House  of  Lords  at  least  one  month  before  the 
end  of  the  session,  is  rejected  by  the  House  of  Lords  in  each 
of  those  sessions,  it  shall,  on  its  rejection  for  the  third  time, 
unless  the  House  of  Commons  direct  to  the  contrary,  be  pre- 
sented to  the  Sovereign  and  become  an  Act  of  Parliament  on 
receiving  the  Royal  Assent,  notwithstanding  that  the  House 
of  Lords  has  not  consented  to  it.  This  provision  does  not 
take  effect  unless  two  years  elapse  between  the  date  of  the 
second  reading  in  the  first  of  the  sessions  of  the  bill  in  the 
House  of  Commons  and  the  date  on  which  it  passes  the  House 
of  Commons  on  the  third  of  those  sessions. 

A  bill  is  rejected  by  the  House  of  Lords  if  it  is  not  passed 
by  that  House  either  without  amendment,  or  with  such  amend- 
ments only  as  may  be  agreed  to  by  both  Houses.  The  House 
of  Commons  may  on  the  passage  of  a  bill  through  the  House 
in  the  second  or  third  session  suggest  any  further  amendments 
without  inserting  them  in  the  bill.  Any  such  suggested 
amendments  are  to  be  considered  by  the  House  of  Lords,  and, 
if  agreed  to  by  that  House,  are  treated  as  amendments  made 


THE  BRITISH  EMPIRE  777 

by  the  House  of  Lords  and  agreed  to  by  the  House  of  Com- 
mons; but  the  exercise  of  this  power  by  the  House  of  Com- 
mons does  not  affect  the  operation  of  the  section  in  the  event 
of  the  bill  being  rejected  by  the  House  of  Lords. 

Any  certificate  given  by  the  Speaker  is  conclusive  and  can- 
not be  questioned  in  any  court  of  law. 

The  territories  ruled  by  Great  Britain  may  be  divided  gen- 
erally into  I.  Those  having  representative  governments  with 
ministers  responsible  to  popular  bodies,  including  Canada, 
Newfoundland,  Queensland,  New  South  Wales,  Victoria, 
South  Australia,  West  Australia,  Tasmania,  New  Zealand, 
and  Cape  Colony.  2.  Those  having  representative  govern- 
ments but  subject  to  veto  on  their  legislation  by  the  home 
government  and  to  the  appointment  of  officials  by  the  crown, 
including  Isle  of  Man,  Channel  Islands,  Malta,  Cyprus,  Cey- 
lon, Mauritus,  Bermudas,  West  Indian  Islands,  British  Guiana. 
3.  Crown  colonies,  ruled  by  the  home  government,  Gibraltar, 
India,  Aden,  Perim,  Straits  Settlements,  Hong  Kong,  African 
possessions  other  than  South  Africa,  British  Honduras,  New 
Guinea,  Fiji  Islands  and  Faulkland  Islands.  Besides  these 
there  are  various  districts  over  which  Great  Britain  assumes 
a  protectorate,  without  having  instituted  any  settled  govern- 
ment, including  Borneo  and  much  of  Africa.  Since  the  loss 
of  the  American  colonies  in  1776  Great  Britain  has  pursued 
a  most  wise  and  liberal  policy  toward  colonies  settled  by 
British  and  other  European  emigrants  in  distant  parts  of  the 
world.  Though  there  is  some  diversity  in  the  relation  of 
the  colonies  of  the  first  class  above  named  to  the  home  gov- 
ernment, they  are  generally  accorded  as  much  liberty  of  local 
legislation  as  the  Parliament  of  the  United  Kingdom  enjoys 
at  home.  The  government  of  each  of  the  colonies  of  all  classes 
has  at  its  head  a  governor  general,  appointed  from  England. 
In  Canada  there  is  a  senate  made  up  of  members  named  by 
the  Governor  General  in  Council  and  an  elective  house.  There 
IS  a  marked  similarity  in  the  legislation  to  that  of  England, 
but  full  liberty  is  accorded  the  Canadians  to  regulate  their 
local  affairs  as  they  please.  Even  greater  freedom  is  allowed 
the  more  distant  colonies  in  Australia  and  New  Zealand,  and 


778 


EVOLUTION  OF  GOVERNMENTS  AND  LAWS 


the  last  named  country  is  now  looked  upon  as  the  one  having 
the  most  socialistic  schemes  in  practical  operation  of  any 
country  in  the  world.  Not  only  are  its  railroads,  telegraphs 
and  telephones  owned  by  the  state,  and  its  express  business 
carried  on  by  it  as  in  most  European  countries,  but  it  also  has 
public  life  insurance  and  a  system  of  compulsory  arbitration 
of  disputes  between  employers  and  employees,  a  land  policy 
calculated  to  assist  the  poor  to  acquire  homes,  provisions  for 
securing  employment  to  all,  excellent  civil  service  rules,  and 
many  other  humane  enactments  designed  to  better  the  con- 
dition of  the  working  class. 

Australia,  divided  into  various  districts,  is  equally  free  to 
do  as  it  pleases,  and  to  it  we  owe  the  first  draft  of  the  law 
providing  for  an  official  ballot.  No  other  government  is  so 
free  to  deal  with  all  governmental  problems,  unhampered  by 
either  constitutional  restrictions  or  abstract  theories,  as  Great 
Britain.  Most  despotic  governments  fear  to  allow  anything 
like  the  expression  of  popular  will  or  local  freedom  of 
political  action,  yet  under  this  monarchy  the  most  radical  re- 
forms  are  permitted  in  the  distant  colonies  by  local  repre- 
sentative assemblies,  without  any  hindrance  whatever  from 
the  home  government.  The  United  Kingdom  is  itself  a 
strange  combination  of  advanced  social  organization  and 
mediaeval  injustice.  A  few  persons  monopolize  the  land,, 
which  is  mostly  held  in  great  estates,  though  England  is  one 
of  the  most  densely  peopled  countries  in  the  world.  Miilhall 
gives  the  size  and  ownership  of  estates  of  over  one  acre  as 
follows : 


Acres 

Number 

Annual 

in  Holding 

of  Owners 
England 

Acres  Owned 

Rental 

Under  50 

194,620 

2,230,000 

£12,950,000 

50  to  100 

25,840 

1,790,000 

4,300,00a 

100  to  500 

32,320 

6,830,000 

13,680,000 

Over  500 

10,070 

22,010,000 

39,310,000 

THE  BRITISH  EMPIRE 


779 


Scotland 

Under  50 

12,940 

110,000 

2,270,000 

50  to  100 

1,210 

90,000 

380,000 

100  to  500 

2,370 

560,000 

1 ,680,000 

Over  500 

2,705 
Ireland 

18,160,000 

8,570,000 

Under  50 

14,600 

224,000 

980,000 

50  to  100 

3,500 

250,000 

310,000 

100  to  500 

8,010 

1,956,000 

1,770,000 

Over  500 

6,500 

17,720,000 

8,990,000 

From  this  it  appears  that  of  the  lands  held  in  tracts  of  such 
size  as  to  be  used  as  farms  in  England  only  12.04  P^r  cent 
is  held  in  tracts  of  100  acres  or  less,  while  66.08  per  cent  is 
held  by  great  landowners  in  tracts  of  over  500  acres,  averag- 
ing 2,185  acres  each.  In  Ireland  only  2.3  per  cent  is  owned 
in  tracts  of  100,  acres  or  less,  while  88  per  cent  is  held  in 
tracts  of  over  500  acres  averaging  2,726  acres  each.  In  Scot- 
land but  I.I  per  cent  is  in  farms  of  100  acres  or  under  and 
96  per  cent  in  those  with  over  500  acres,  averaging  6,713 
acres.  In  England  some  large  holdings  have  been  purchased 
by  successful  merchants,  manufacturers  and  others,  who  have 
acquired  wealth  by  their  own  efforts,  but  most  of  them 
throughout  the  United  Kingdom  are  survivals  of  the  feudal 
system  and  based  on  kingly  favor  or  successful  private  wars. 
The  large  holdings  in  Ireland  mostly  date  from  the  time  of 
William  III,  when  the  estates  of  the  Irish  Catholics  were  par- 
celled out  to  English  favorites.  In  Scotland  the  great  lords 
still  hold  the  land  as  the  heirs  of  their  feudal  ancestors.  The 
average  size  of  landed  estates  in  the  leading  countries  is  given 
by  Mulhall  as  follows: 


France 

32 

acres 

. 

Germany 

Z7 

a 

Belgium 

18  acres 

Russia 

31 

n 

Sweden 

300      " 

Austria 

20 

ti 

Norway 

200      " 

Italy 

36 

(( 

Denmark 

115      " 

Spain 

95 

(( 

U.  S. 

134      " 

Holland 

45 

it 

Great  Britain 

390      " 

78o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

There  is  no  fair  approximation  to  justice  in  its  distribution 
of  the  face  of  the  earth,  in  its  general  system  of  land  tenure, 
or  in  its  theory  of  the  descent  and  distribution  of  property. 
How  then  does  it  come  that  England  has  been  so  much 
praised  for  the  Hberality  of  its  laws  and  the  freedom  of  its 
people?  First,  England  from  an  early  day  became  the  most 
tolerant  of  ideas  and  indulged  the  greatest  liberty  of  speech. 
It  took  the  lead  in  searching  out  the  true  sources  of  the 
wealth  of  distant  lands  and  in  securing  to  itself  a  share  of 
it.  It  has  from  an  early  day  indulged  and  encouraged  its 
people  in  adventure,  and  was  among  the  first  to  fully  appre- 
ciate the  true  principles  relating  to  the  exchange  of  products 
and  the  vast  benefits  of  commerce.  Having  opened  its  ports 
to  all  the  world  it  has  became  its  central  market.  No  people 
understand  better  than  they,  that  commerce  is  an  exchange 
of  surplus  products,  which  would  go  to  utter  waste  if  left  in 
the  hands  of  the  producers,  so  that  the  transfer  from  the 
producer  who  has  no  use  for  them  to  the  consumer  who  does 
need  them  is  a  clear  saving  of  the  whole  value.  England 
owes  its  greatness,  not  to  its  mediaeval  land  tenure,  but  to  the 
freedom  of  its  people  to  engage  in  manufacturing  and  com- 
mercial pursuits.  Though  its  school  system  has  been  so  defi- 
cient, its  vast  navy  and  merchant  marine  and  its  remote 
trading  colonies  have  from  an  early  day  furnished  schools  of 
practical  instruction  of  far  greater  economic  value  than  the 
monkish  schools  of  the  continent,  where  dead  languages  and 
dead  theology  were  taught.  No  other  people  have  had  such 
a  genius  for  statistics,  for  gathering  information  useful  to 
the  merchant,  the  manufacturer,  and  the  seaman.  Charts  of 
all  the  seas,  maps  of  all  the  lands,  and  useful  information 
about  all  the  various  peoples  of  the  earth  and  the  countries 
in  which  they  live,  have  been  industriously  gathered,  printed 
and  distributed  among  those  who  could  profit  from  them. 
This  is  not  merely  an  efficient  system  of  practical  education, 
but  it  is  the  path  of  progress  and  improvement.  No  other 
government  is  so  closely  allied  with  the  business  enterprises 
of  its  people.  In  the  early  days  these  alliances  were  mainly  to 
aid   favorites   of   the   crown   with   trading  monopolies,   and 


THE  BRITISH  EMPIRE  781 

reached  their  culmination  in  the  time  of  EHzabeth,  when  mo- 
nopoHes  had  become  so  numerous  and  trade  a  matter  of  so 
much  concern  that  pubHc  attention  was  attracted  to  it.  It  was 
perceived  that  the  general  public  suffered  from  all  these  mo- 
nopolies, and  that  each  monopolist  paid  tribute  to  each  other 
monopolist.  The  last  to  yield  their  advantage  were  the  great 
landowners,  who  sought  to  keep  up  the  price  of  bread  by  pro- 
hibiting importations  of  grain,  but  famine  came  to  enforce 
the  demands  of  reason  and  justice,  and  trade  monopoly  was 
abolished  so  far  as  it  could  be  done  by  opening  the  ports  of 
the  country  freely  to  all  who  had  goods  to  sell.  The  system 
of  rulership  by  political  parties  has  led  to  the  steady  growth 
of  a  public  conscience.  Criticisms  of  the  conduct  of  the  op- 
posite party  have  brought  to  the  attention  of  the  country  the 
moral  standards  and  tests  by  which  the  actions  of  men  are  to 
be  measured,  and  the  English  public  opinion  of  to-day  is  far 
more  enlightened  and  humane  than  that  of  a  century  ago. 
Moral  standards  though  better  observed  are  not  yet  accepted 
as  guides  to  the  conduct  of  public  officials.  The  lower  stand- 
ard of  profit  is  the  one  most  followed.  The  party  in  power 
always  seeks  to  further  what  are  called  British  interests.  Any 
combination  of  persons  or  interests  sufficient  in  numbers  or 
wealth  to  attract  attention  can  ordinarily  rely  on  the  govern- 
ment to  give  it  aid  and  protection.  The  government  has  from 
an  early  day  attached  to  itself,  not  merely  the  great  land- 
owners, but  also  those  having  money  to  invest,  and  has  in 
many  ways  encouraged  money  saving  and  investment  in  public 
or  semi-public  stocks  and  securities.  The  East  India  Company 
and  the  Bank  of  England  are  instances  of  a  kind  of  partner- 
ship between  the  government  and  certain  of  its  citizens.  In 
the  case  of  the  first  named  company  loans  were  made  to  the 
government  in  return  for  commercial  and  political  favors  and 
assistance.  In  the  case  of  the  Bank  each  aids  the  other  in  its 
monetary  affairs,  the  Bank  being  the  public  depository  and 
financial  agent  of  the  government  as  well  as  a  great  banking 
concern  dealing  with  the  public.  But  it  is  not  in  such  institu- 
tions, which  are  common  to  other  countries,  that  the  peculiar 
bent  of  the  British  government  is  manifested.    It  has  the  great- 


782  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

est  navy  of  any  nation  on  earth  and  pursues  a  general  policy  of 
advancing  the  commercial  interests  of  its  people  in  distant 
lands  and  among  people  living  in  a  low  social  state  by  force 
of  arms.     It  is  frequently  at  war  with  some  tribe  or  nation 
in  som.e  part  of  the  earth  to  aid  its  merchants  and  capitalists 
in  their  enterprises.     It  seeks  not  merely  political  supremacy 
and  revenues  from  the  taxation  of  industrious  people,  such  as 
those  of  India,  but  the  more  fruitful  sources  of  revenue  based 
on  theories  of  property  rights.     Since  the  overthrow  of  Na- 
poleon Great  Britain  has  not  engaged  single  handed  in  war 
with  any  great  European  nation.     In  the  Crimean  War  most 
of  the  troops  were  furnished  by  her  allies.     Her  armies  have 
been  employed  in  China,  India,  Africa  and  the  islands  of  the 
seas,  with  a  view  to  the  profit  of  her  merchants  or  investors. 
The  elasticity  of  the   British  constitution  is   such  that  the 
cabinet,  the  actual  ruling  force,  can  be  enlarged  or  contracted 
as  may  be  found  convenient  in  order  to  include  recognized 
leaders  of  the  majority  in  the  House  of  Commons  without 
taking  in  any  objectionable  person;  colonies  of  Englishmen 
accustomed  to  take  part  in  governmental  affairs  can  be  left 
to  govern  themselves,  and  the  Asiatic  multitude  in  India  can 
be  ruled  after  the  manner  of  Oriental  despots,  without  any 
representation  in  the  government.    The  Governor  General  of 
India  with  his  council  is,  so  far  as  the  people  of  India  are 
concerned,  the  viceroy  of  the  King  of  England  with  unlimited 
powers   both   of   legislation   and   administration.      The   only 
checks  on  his  authority  are  those  imposed  by  the  home  gov- 
ernment.    The  people  of  India  have  none.     The  Governor 
General  in  fact  exercises  very  arbitrary  powers,  and  the  people 
of  India  are  heavily  burdened  with  taxation  for  people  so 
poor.    They  support  a  great  number  of  British  officials  at  very 
high  salaries  with  very  little  advantage  from  their  presence. 
The  only  influence  tending  strongly  to  mitigate  the  arbitrary 
powers  wielded  by  the  officials  are  their  education  to  respect 
the  rights  of  others  and  public  sentiment  in  England,  which 
would   condemn   anything  like   barbarous   treatment   of   the 
people.    While  the  Governor  General  in  council,  subject  to  the 
approval  of  the  home  government,  has  full  legislative  power. 


I 

THE  BRITISH  EMPIRE  783 

the  system  of  laws  by  which  the  people  are  governed  and  the 
rules  by  which  causes  are  decided  in  the  courts  are  found  in 
the  ancient  code  of  Manu,  as  modified  by  local  influences; 
the  Koran  for  Mohammadans,  and  local  customs  among  tribes 
that  do  not  accept  either  the  Code  of  Manu  or  the  Koran. 
The  system  of  castes,  which  has  so  long  prevailed  and  which 
rests  on  these  ancient  laws,  affords  a  very  convenient  basis  for 
the  super-imposition  of  a  military  despotism.  By  taking  the 
military  caste  into  the  army  under  pay  of  the  British  rulers 
no  class  is  left  with  any  genius  for  the  organization  of  an 
opposing  force.  By  shifting  these  troops  from  their  native 
provinces  to  those  in  which  they  are  strangers  their  fidelity 
is  secured.  Mohammedan  troops  can  be  relied  on  in  Brah- 
man districts  and  vice  versa.  In  one  particular  at  least  Brit- 
ish rule  is  beneficial;  the  aids  to  commerce  are  introduced 
more  rapidly  than  they  would  have  been.  Railways  and  tele- 
graphs, postal  facilities,  harbor  improvements  and  the  like 
have  improved  the  means  of  communication  with  other  coun- 
tries and  and  between  different  parts  of  India.  The  revenue 
derived  from  land  tax,  railways,  opium,  salt  tax,  post  office, 
irrigation  and  sundry  sources  in  1906-7  was  £73,144,600; 
expenditures  £71,555,200.  The  purposes  for  which  this 
money  is  used  are  summarized  as  follows : 

Debt,  Interest  on  £8,405,000 

Army  21,586,100 

Railways  10,676,200 

Irrigation  2,736,800 

Civil  Works  4,358,700 

Sundries  23,792,400 

The  advantages  gained  by  Great  Britain  from  sovereignty 
over  India  are  not  expressed  by  any  direct  contribution  to 
the  home  treasury  by  way  of  taxation,  but  by  the  many 
ways  in  which  British  subjects  are  enriched  through  the  ad- 
ministration of  the  government  in  India  and  profits  of  its 
commerce.  It  may  be  observed  that  no  part  of  the  money 
collected  by  the  government  is  expended  for  the  education 
of  the  natives.     No  school  system  has  been  established  to 


784  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

disseminate  European  ideas  and  information,  but  the  native 
teachers  are  left  to  teach  the  code  of  Manu  and  the  Brahman, 
Buddhist  and  Mohammedan  doctrines,  leaving  to  Christian 
missionaries  the  difficult  task  of  demonstrating  the  super- 
iority of  a  religion  of  peace,  coming  from  a  conquering 
nation  ruling  by  force  of  arms.  In  some  parts  of  India  and 
in  other  portions  of  the  globe,  where  the  direct  exercise  of 
the  governing  power  through  British  officials  is  not  yet  ex- 
pedient, native  rulers  are  utilized,  and  a  protectorate  is  es- 
tablished over  them,  through  which  commercial  advantages 
are  secured  without  full  responsibility  for  maintaining  order. 
In  all  its  operations  the  British  government  is  an  intensely 
practical  one,  counting  the  money  cost  of  everything  and  the 
profits  likely  to  accrue  to  private  citizens  as  well  as  the  public 
treasury.  In  its  legislation  the  British  parliament  wisely 
abstains  from  minute  regulations  of  all  administrative  mat- 
ters, leaving  details  to  be  worked  out  by  those  entrusted  with 
the  undertaking  in  accordance  with  the  general  plan  formu- 
lated by  Parliament.  The  new  code  of  procedure  in  the 
courts  was  prepared  by  the  judges  and  merely  approved  by 
parliament.  The  inability  of  a  great  representative  body  like 
the  House  of  Commons  to  deal  with  the  details  of  matters 
requiring  long  continued  special  study  and  exceptional  oppor- 
tunities for  obtaining  information  is  there  better  appreciated 
than  in  most  legislative  bodies.  In  considering  the  causes 
which  have  given  to  Great  Britain  the  leading  position  it  now 
holds,  the  encouragement  of  all  sorts  of  voluntary  organi- 
zations by  the  people  for  useful  purposes  must  not  be 
overlooked.  Not  only  have  corporations  organized  to  carry 
forward  great  commercial  enterprises  and  manufacturing 
schemes  been  permitted  and  often  greatly  aided  by  the  govern- 
ment, but  in  recent  years  cooperative  societies  laboring  men's 
organizations  and  friendly  societies  of  all  sorts,  designed  to 
bring  about  more  just  conditions  and  aid  the  poorer  classes 
in  their  struggles  for  existence  have  been  permitted  and 
general  laws  passed  granting  them  corporate  powers.  These 
societies  have  not  only  accomplished  much  material  good  for 
their  members,  but  have  also  exercised  a  most  salutary  influ- 


THE  BRITISH  EMPIRE  785 

ence  on  public  sentiment.  To  the  various  labor  organizations 
is  largely  due  the  improvement  in  the  conditions  of  the  toiling 
millions  and  the  growing  sense  of  public  accountability  for 
unjust  conditions.  Notwithstanding  the  great  activity  of  the 
British  parliament  in  law  making,  and  that  152  volumes  are 
required  to  contain  the  enactments  which  have  been  pre- 
served, but  a  very  small  part  of  the  law  administered  by  the 
courts  is  to  be  found  in  any  act  of  Parliament.  Like  the 
British  constitution  the  common  law  of  England  is  unwritten. 
For  authoritative  expression  of  it  the  student  must  go  to  the 
reported  decisions  of  the  courts.  In  earlier  times  the  text 
writers,  Littleton,  Coke,  Blackstone,  Chitty  and  others  were 
much  consulted  and  relied  on,  but,  with  the  increased  volume 
of  business  in  the  courts  and  the  rapid  multipHcation  of  re- 
ports of  decisions,  lawyers  now  rely  almost  exclusively  on  the 
opinions  of  the  higher  courts  for  the  exact  rule  in  any  case. 
Of  these  reports  there  are  thousands  of  volumes  and  many 
new  ones  are  coming  out  each  year. 

Note:  For  all  matters  of  legislation  I  have  consulted  and 
relied  on  the  published  Statutes  at  Large.  References  to  par- 
ticular Acts  of  Parliament  are  made  in  the  text. 

For  matters  of  history  the  works  of  Hume,  Burke,  Gold- 
smith, Macaulay,  Lingard,  Hodgkin,  Holdsworth,  and  the 
Encyclopaedia  Britannica  have  been  consulted. 

For  Statistics 

Mulhall :    Dictionary  of  Statistics. 
U.  S.  Statistical  Abstract. 
Encyclopaedia  Britannica. 


CHAPTER  XXV 


United  States 


The  first  voyages  of  discovery  by  Englishmen  to  America 
were  undertaken  by  private  adventurers,  rather  than  by  the 
government,  and  the  first  settlements  were  similarly  effected. 
It  was  nearly  a  hundred  years  after  Columbus  made  his  dis- 
covery till  the  English  made  any  well  defined  effort  to  gain  a 
foothold  on  the  American  continent.     In  1584  Queen  Eliza- 
beth granted  to  Walter  Raleigh  a  charter  "to  discover,  search, 
find  out  and  view  such  remote  heathen  and  barbarous  lands, 
countries,  and  territories  not  inhabited  by  Christian  people  as 
to  him  his  heirs  and  assigns,  and  to  every  and  any  of  them  shall 
seeme  good,  and  the  same  to  have  holde,  occupie  and  enjoy 
to  him,   his  heirs  and  assigns   for  ever,  .  .  .  and  the  said 
Walter  Raleigh,  his  heirs  and  assigns,  and  all  such  as  from 
time  to  time  by  license  of  us  our  heirs  and  successors  shall 
goe  or  travaile  thither  to  inhabite  or  remaine,  there  to  build 
and  fortifie,  at  the  discretion  of  the  said  Walter  Raleigh,  his 
heirs  and  assigns,  the  statutes  or  acte  of  Parliament  made 
against  fugitives,  or  against  such  as  shall  depart,  remaine, 
or  continue  out  of  our  realme  of  England  without  licence, 
or  any  other  statute,  acte,  lawe,  or  any  ordinance  whatsoever 
to  the  contrary  in  any  wise  notwithstanding."     License  was 
given  to  all  subjects  to  join  in  the  enterprise  and  to  take  their 
goods  with  them.    Raleigh  was  given  leave  to  organize  forces 
and  fight  and  expel  any  one  who  might  attempt  to  interfere 
with  his  possession,  and  to  set  up  a  government  in  the  country 
occupied,  including  all  the  lands  within  200  leagues  of  the 
settlements  made  by   him,   governing  as   nearly   as   may  be 
in  accordance  with  the  laws  of  England.     The  only  right 
reserved  was  that  of  sovereignty  and  one-fifth  the  gold  and 
silver  ore  produced.     The  effect  of  this  charter  was  to  grant 
to  Raleigh  and  such  British  subjects  as  might  choose  to  go 

786 


UNITED  STATES  787 

with  him,  the  right  to  estabhsh  a  colony  in  any  country,  not 
inhabited  by  Europeans,  which  they  could  find,  take  and  hold. 
Under  this  charter  five  voyages  to  America  were  made  and 
the  first  colony  was  landed  on  Roanoke  Island,  Virginia,  in 
1585,  but  soon  abandoned  it  and  returned  to  England.  In 
1587  a  second  colony  arrived  at  Roanoke,  where  it  was  left 
to  make  its  way  as  best  it  could  during  the  war  between 
England  and  Spain.  Three  years  later,  when  English  ships 
again  visited  Roanoke,  the  colony  had  wholly  disappeared. 
No  permanent  settlement  was  effected  under  Raleigh's  charter. 
In  1606  James  I  granted  a  charter  to  Sir  Thomas  Gates, 
and  seven  other  persons  by  name,  and  such  others  (not 
named),  as  should  be  joined  unto  them  to  establish  two  col- 
onies in  Virginia,  the  first  colony  by  Gates,  Somers,  Hackluit, 
Wingfield  and  other  adventurers  of  and  for  London,  to 
settle  between  latitude  thirty-four  degrees  and  forty-one  de- 
grees, with  territor}^  extending  along  the  coast  for  fifty  miles 
each  way  from  their  first  settlement  and  100  miles  inland, 
and  the  second  colony,  by  Hanham,  Gilbert,  Parker  and  Pop- 
ham  -of  Plymouth,  for  a  district  of  equal  size  with  the  first, 
between  latitude  thirty-eight  degrees  and  forty-five  degrees, 
and  the  first  settlements  to  be  not  less  than  100  miles  from 
any  prior  settlement.  The  charter  provided  that  each  colony 
should  have  a  council  of  thirteen  members  to  be  appointed 
and  govern  the  colony  in  such  manner  as  the  king  should 
direct.  Another  council  of  thirteen  in  England  was  provided 
for,  to  have  the  "superior  managing  and  direction"  of  these 
colonies  and  others  that  might  be  established  between  latitude 
thirty- four  degrees  and  forty-five  degrees.  The  grants  to 
these  colonies  were  buttressed  with  a  provision  that  no  grant 
should  be  made  to  others  of  lands  behind  their  tracts  without 
the  express  license  or  consent  of  the  council  of  the  colony! 
Leave  was  granted  to  all  British  subjects  to  emigrate  to  the 
colonies  with  their  goods  and  arms,  and  to  make  war  on 
anyone  attempting  to  interfere  with  their  possessions.  Pat- 
ents for  the  lands  to  such  persons  as  the  council  of  the  colony 
or  the  majority  of  them  might  nominate,  to  be  issued  under 
the  great  seal,  were  promised.    "To  be  holden  of  us  our  Heirs 


788  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  Successors  as  of  our  Manor  of  East  Greenwich  in  the 
county  of  Kent,  in  free  and  common  Soccage  only  and  not  in 
Capite." 

The  London  company  proceeded  at  once  to  organize  an 
expedition  and  in  the  spring  of  1607  the  first  permanent 
Enghsh  settlement  was  made  at  Jamestown  on  the  James 
River  in  Virginia  by  a  colony  of  105  men  under  Capt.  John 
Smith.  The  following  winter  120  men  were  added  and  in 
the  fall  of  1608,  sixty-eight  more,  accompanied  by  two  wo- 
men, who  came  not  as  settlers  but  as  visitors. 

In  1609  a  second  charter  was  granted  by  which  a  great 
number  of  persons  by  name  and  many  companies  of  Grocers, 
Tailors,  Mercers,  etc.,  were  incorporated  under  the  name  of 
*'The  Treasurer  and  Company  of  Adventurers  and  Planters 
of  the  City  of  London  for  the  first  Colony  in  Virginia," 
and  given  all  the  rights  before  conferred  on  the  first  colony 
under  the  prior  charter  with  a  more  extended  territory  run- 
ning 200  miles  each  way  up  and  down  the  coast  from  Point 
Comfort.  The  council  in  the  colony  was  done  away  with, 
and  a  much  more  numerous  council  in  England  was  named 
in  the  charter  and  given  power  to  appoint  a  governor  and 
such  other  officers  as  they  might  see  fit  for  the  government  of 
the  colony.  The  power  to  divide  and  convey  the  land  cov- 
ered by  the  grant  was  transferred  to  the  corporation,  and 
that  of  making  laws  and  regulations  for  the  government  of 
the  colony  to  the  council  named.  The  only  reservation  of 
revenue  was  one-fifth  of  all  gold  and  silver  and  duties  on 
merchandise  improted  into  England  of  five  per  cent.  The 
company  was  authorized  to  make  war  when  necessary  for  the 
protection  of  its  interests.  This  new  corporation  with  its 
large  membership,  whose  names  cover  three  and  a  half  large 
printed  pages  of  the  charter,  proceeded  vigorously  with  the 
work  of  promoting  the  settlement  of  the  country  and,  in 
June,  1609,  nine  ships  with  500  colonists  sailed  from  Eng- 
land. The  Colonists  fell  into  difficulties  when  Captain  Smith 
went  back  to  England  on  account  of  a  wound  he  had  re- 
ceived. In  six  months  after  he  left  there  were  but  sixty  per- 
sons in  the  colony,  and  they  had  started  down  the  river  on 


UNITED  STATES  7^9 

their  way  to  the  Newfoundland  fisheries,  when  they  met  the 
new  governor,  Lord  Delaware,  with  a  large  number  of  new 
colonists  and  fresh  supplies.  The  cultivation  of  tobacco  was 
taken  up,  instead  of  the  unsuccessful  search  for  gold,  and 
became  very  profitable. 

Law-making  for  the  colony  was  undertaken  by  the  council 
of  the  corporation  in  England,  and  in  1611  a  set  of  very 
strict  laws  was  sent  over  to  Virginia  from  London.  Theft 
and  disrespectful  language  toward  the  king  were  made  pun- 
ishable with  death,  and  swearing  and  absence  from  public 
worship  were  also  made  capital  on  the  third  conviction. 

In  1612  the  thirdvand  last  charter  to  this  colony  was  is- 
sued, providing  for  meetings  of  the  company  in  England 
once  each  week  or  oftener  for  minor  affairs  and  for  general 
''courts"  of  the  company,  to  be  held  four  times  each  year, 
with  power  at  any  general  court  to  elect  members  of  the 
council,  to  nominate  and  appoint  such  officers  as  they  should 
think  fit  for  the  government  of  the  affairs  of  the  company,  to 
make  laws  for  the  government  of  the  plantations  not  in  con- 
flict with  the  Laws  of  England,  to  admit  and  expel  members 
for  cause  and  to  enforce  the  performance  of  their  contracts 
by  person  bound  to  serve  the  company.  These  charters,  it 
will  be  noticed,  were  not  to  the  people  who  might  settle  in 
Virginia,  but  to  people  in  England  who  furnished  means  and 
promoted  the  settlement  of  the  colony  by  others.  It  was  a 
corporate  venture,  organized  in  accordance  wjth  the  general 
principles  of  business  corporations,  but  with  political  powers 
added. 

Acting  under  the  powers  of  legislation  conferred  by  this 
charter,  the  Company  sent  out  a  set  of  very  strict  laws,  framed 
in  accordance  with  the  savage  severity  then  prevailing  in 
the  laws  of  England.  Theft  and  disrespectful  language 
spoken  of  the  king  were  again  made  capital  crimes,  and 
swearing  and  absence  from  public  worship  were  also  pun- 
ishable with  death  at  the  third  offense.  The  settlement  of 
the  colony  thus  far  had  been  almost  exclusively  by  men.  In 
1 61 9  a  ship  load  of  ninety  girls  was  sent  over,  who  were  very 
quickly  married  to  planters  and  became  the  mothers  of  nu- 


790  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

merous  families.  About  1200  other  settlers  went  in  the  same 
year.  Convicts  were  also  sent  from  England  and  sold  for 
servants  for  a  term  of  years.  In  the  same  year  a  Dutch 
ship  brought  in  the  first  cargo  of  African  slaves  and  sold 
them  to  the  planters.  Legislation  for  the  colony  by  the  cor- 
poration in  England  was  not  found  to  be  satisfactory  and  in 
16 1 9  ''that  the  planters  might  have  a  hand  in  the  governing 
of  themselves,  it  was  granted  that  a  general  assembly  should 
be  held  yearly  once,  whereat  were  to  be  present  the  gov- 
ernor and  council,  with  two  burgesses  from  each  plantation, 
treely  to  be  elected  by  the  inhabitants  thereof,  this  assembly 
to  have  power  to  make  and  ordain  whatsoever  laws  should 
by  them  be  thought  good  and  profitable."  The  first  Council 
of  Burgesses  met  in  Jamestown  in  161 9.  In  1622  the  col- 
onists suffered  severely  from  a  well  concerted  attack  by  the 
Indians  and,  in  the  fierce  war  that  followed,  nearly  2000 
colonists  were  killed.  In  1624  King  James  dissolved  the 
London  Company  and  took  the  government  of  Virginia  into 
his  own  hands,  but  continued  the  system  then  in  use,  himself 
appointing  a  governor  and  council  for  the  colony  and  allow- 
ing the  people  to  elect  the  House  of  Burgesses,  thus  model- 
ling the  colonial  organization  very  closely  after  the  British 
home  government,  with  a  Governor  representing  the  king, 
a  council  appointed  by  him  and  a  popular  body  chosen  by  the 
people.  This  system  continued  down  to  the  time  of  the 
revolution. 

The  next  charter  was  granted  by  James  I  in  1620,  as  the 
charter  of  the  second  colony,  covering  the  country  from  the 
fortieth  to  the  forty-eighth  parallels  of  north  latitude,  to  be 
called  New  England,  and  created  a  body  politic  and  corporate 
in  the  town  of  Plymouth,  county  of  Devon,  to  consist  of 
forty  persons  and  no  more  "for  the  planting,  ruling,  order- 
ing and  governing  of  New  England  in  America"  and  names 
forty  persons,  including  many  of  the  nobility,  as  the  members 
of  the  first  council  established  at  Plymouth,  with  power  to 
fill  vacancies  thereafter  occurring.  The  corporate  name  was 
"the  Council  established  at  Plymouth  in  the  county  of  Devon 
for  the  planting,  ruling  and  governing  of  New  England  in 


UNITED  STATES  791 

America"  and  they  were  given  the  usual  powers  of  succes- 
sion, to  acquire  and  hold  property  in  England  and  elsewhere, 
to  sue  and  be  sued  and  use  a  common  seal.  They  were  given 
authority  to  admit  such  persons  into  New  England  as  they 
should  see  fit,  to  allow  them  to  have  and  possess  such  lands 
as  they  should  think  fit,  to  trade  there,  to  name  governors, 
officers  and  ministers  to  attend  to  the  business  of  the  cor- 
poration and  also  for  the  government  of  the  colony,  to  es- 
tablish and  ordain  all  manner  of  laws,  orders  and  directions, 
fit  and  necessary  for  the  government  of  the  colony  and  plan- 
tations and  on  the  high  seas  going  and  returning,  as  they 
should  think  for  the  good  of  the  adventurers.  Full  liberty 
of  emigration  was  allowed  to  all  subjects  with  their  goods 
without  paying  any  custom  or  subsidy  for  seven  years,  and 
no  customs  or  subsidies  were  to  be  collected  in  New  Eng- 
land for  twenty-one  years,  except  only  £5  per  cent  on  all 
goods  imported  into  England,  with  privilege  then  to  export 
to  other  countries.  Leave  was  granted  the  council  to  divide 
the  land  among  the  colonists  and  make  wars  on  any  enemies 
interfering  with  their  possessions.  All  other  subjects  were 
prohibited  from  trading  with  the  colony  without  license  from 
the  council,  and  the  council  were  authorized  to  seize  any  goods 
brought  into  the  colony  or  taken  out  without  leave.  All  sub- 
jects inhabiting  New  England  and  their  children  were  guar- 
anteed the  rights  of  Englishmen.  The  religious  idea  finds 
frequent  expression  and  the  exclusion  of  persons  "suspected 
to  affect  the  Superstition  of  the  Church  of  Rome"  was  en- 
joined, and  none  were  to  be  permitted  to  go  there  but  such 
as  should  take  "the  oathe  of  Supremacy."  This  charter  is 
very  long  and  verbose.  The  first  actual  settlement  in  the 
territory  named  in  it  was  made  by  a  company  of  Puritans, 
who  had  emigrated  to  Holland  and  then  returned  to  Eng- 
land with  a  view  to  going  thence  to  America.  They  obtained 
a  license  from  the  London  Company,  but  in  the  name  of  a 
person  who  did  not  accompany  them,  and  so  in  fact  went 
without  any  leave  from  the  king  or  either  of  his  chartered 
companies.  Unlike  the  first  settlers  of  Virginia,  they  took 
their  families  with  them.     Before  landing  at  New  Plymouth 


792  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

they  entered  into  the  following  rather  novel  covenant.  'In 
the  Name  of  God,  Amen.  We  whose  names  are  underwritten 
the  Loyal  Subjects  of  our  dread  Sovereign  Lord  King  James 
.  .  .  Having  undertaken  for  the  Glory  of  God  and  ad- 
vancement of  the  Christian  faith,  and  the  Honor  of  our  king 
and  country,  a  voyage  to  plant  the  first  colony  in  the  northern 
parts  of  Virginia.  Do  by  these  presents,  solemnly  and  mu- 
tually, in  the  presence  of  God  and  one  another,  covenant  and 
combine  ourselves  together  into  a  civil  Body  Politick,  for  our 
better  ordering  and  preservation  and  furtherance  of  the  ends 
aforesaid:  And  by  virtue  hereof  do  enact,  constitute  and 
frame  such  just  and  equal  Laws,  Ordinances,  Acts,  Consti- 
tutions and  Officers,  from  time  to  time,  as  shall  be  thought 
most  meet  and  convenient  for  the  general  good  of  the  colony, 
imto  which  we  promise  all  due  Submission  and  Obedience.  In 
witness  whereof  we  have  hereunto  subscribed  our  names  at 
Cape  Cod  the  eleventh  of  November  in  the  reign  of  our  sov- 
ereign lord  King  James  of  England,  France  and  Ireland  the 
eighteenth  and  of  Scotland  the  fifty-fourth.  Anno  domni 
1620."  To  this  instrument  forty-one  names  were  signed. 
Though  they  landed  in  the  winter  and  endured  great  hard- 
ships, the  colony  maintained  its  ground  and  its  descendants 
have  played  leading  parts  in  subsequent  American  history. 
Eight  years  later  two  hundred  English  Puritans  settled  at 
Salem.  On  March  4,  1629,  Charles  I  issued  a  new  charter, 
granting  to  Sir  Henry  Roswell  and  twenty-five  others  named, 
and  their  heirs  and  assigns,  certain  lands  along  the  coast  of 
Massachusetts  and  extending  to  the  "South  Sea."  The  par- 
ties named  and  their  associates  were  made  a  corporation  under 
the  name  of  "the  Governor  and  Company  of  the  Mattachu- 
setts  Bay  in  Newe  England,"  with  the  usual  corporate  powers 
to  have  a  Governor,  Deputy  Governor  and  eighteen  assist- 
ants "to  be  from  tyme  to  tyme  constituted  elected  and  chosen 
out  of  the  freemen  of  saide  Company."  The  Governor  was 
given  authority  to  assemble  the  company  and  hold  a  court  or 
assembly  once  a  month  or  oftener  at  their  pleasure,  at  which 
seven  assistants,  with  the  Governor  or  Deputy  Governor, 
should  be  a  sufficient  number  to  transact  business,  and  that  a 


UNITED  STATES  793 

general  court  of  the  Company  should  be  held  four  times  a 
year,  at  which  new  members  might  be  admitted,  officers  elected 
and  laws  and  ordinances  enacted  for  the  good  of  the  company 
and  the  government  of  the  plantation,  not  repugnant  to  the 
laws  of  England.  The  Governor,  Deputy  Governor  and  As- 
sistants were  to  be  chosen  by  the  general  assembly  annually. 
The  other  provisions  of  this  charter  are  in  substance  a  repeti- 
tion of  those  contained  in  the  New  England  charter,  and  all 
the  privileges  given  by  that  charter  are  continued  in  this.  The 
next  year  the  company  moved  over  to  the  colony,  taking 
more  than  a  thousand  colonists  along.  In  this  manner  the 
governing  body  of  the  colony  came  to  be  identified  with  the 
colony  itself,  and  a  self-governing  state  was  established  on  the 
American  continent,  which  not  only  chose  its  representative 
assembly,  but  also  its  Governor  and  council  and  all  officers 
under  them.  The  settlement  of  Massachusetts  proceeded 
rapidly  from  this  time  and,  by  1640,  many  towns  were  planted. 
Each  town  held  its  meetings  at  which  all  freemen  voted  for 
magistrates  and  delegates  to  the  General  Court.  Education 
was  recognized  as  a  function  of  the  state,  every  township 
was  required  to  maintain  a  school  for  primary  instruction,  and 
every  town  of  one  hundred  householders  a  Latin  and  Gram- 
mar school.  Harvard  College  was  established  by  the  General 
Court  in  1638,  and  in  1639  the  first  printing  press  was  set  up. 
Thus  in  the  brief  period  of  twenty  years  a  flourishing  little 
state  had  been  established  on  a  comparatively  barren  portion 
of  the  American  coast. 

In  1609,  prior  to  the  landing  of  the  Pilgrims,  the  Dutch  had 
sailed  up  the  Hudson  River  as  far  as  Albany.  About  four 
years  later  they  established  a  trading  post  on  Manhattan 
Island,  and  in  161 4  a  fort  was  built  by  them  at  Albany.  In 
1629  the  Dutch  West  India  Company  was  formed  and  emi- 
grated to  New  Netherlands,  as  their  possessions  near  the  Hud- 
son River  were  called.  They  encouraged  immigration  to  their 
colony  and  gave  great  tracts  of  land  to  such  as  should  bring 
out  colonists.  These  grants  were  the  foundations  of  the  great 
landed  properties  of  the  Dutch  patroons.  The  Dutch  planted 
colonies  on  the  Connecticut  and  in  1654  took  from  the  Swedes 


794  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  colony  they  had  estabHshed  on  the  Delaware.  In  1664 
the  English  took  New  Amsterdam  and  changed  its  name  to 
New  York,  and  all  the  Dutch  possessions  there  were  ceded  to 
England  at  the  termination  of  the  war  between  these 
countries. 

Charters  to  lands  they  neither  owned  nor  occupied  were 
lightly  made  and  easily  disregarded  by  kings,  who  ruled  by 
right  divine,  and  who  in  contemplation  of  law  could  do  no 
wrong.  In  1632  Charles  I,  notwithstanding  the  fact 
that  the  territory  was  included  in  the  Virginia  charter,  gave 
Maryland  to  George  Calvert,  Lord  Baltimore,  but  he  having 
died  before  delivery  of  the  charter,  another  was  made  to  his 
son,  Cecil  Calvert,  a  Catholic.  The  charter  was  written  in 
Latin  and  differed  from  prior  charters  in  the  particulars,  that 
it  was  for  a  definite  territory,  to  a  single  individual,  of  which 
he  was  made  "verum  dominum  et  Proprietarium"  subject  only 
to  his  fidelity  and  allegiance  to  the  king,  with  full  power  to 
govern  the  province  and  make  laws,  with  the  consent  of  the 
freemen  or  their  representatives.  Religious  liberty  was  guar- 
anteed and  the  usual  permission  of  subjects  to  emigrate,  fight 
their  own  battles  and  trade  with  the  mother  country.  Under 
the  liberal  policy  of  Calvert,  the  colony  increased  rapidly,, 
drawing  many  settlers  from  the  earlier  colonies. 

Without  any  charter  or  other  express  license  from  the  king,, 
in  1633  a  company  from  Plymouth  established  a  trading  post 
at  Windsor  on  the  lower  Connecticut  River.  Two  years  later 
settlements  were  made  at  Hartford,  Withers  ford  and  Spring- 
field. Other  towns  were  rapidly  started  along  the  sound  by 
Englishmen. 

The  first  American  constitution  was  made  by  the  Connecti- 
cut colonists  and  bears  date  Jan.  14,  1638.  It  provides  that 
all  freemen  who  inhabit  the  country  and  take  the  Oath  of 
Fidelity  shall  be  entitled  to  vote,  that  deputies  shall  be  chosen 
at  town  meetings,  each  voter  writing  the  names  on  a  piece  of 
paper  and  delivering  it  to  persons  chosen  to  count  the  votes, 
that  the  deputies  shall  meet  in  a  general  court  twice  a  year, 
on  the  second  Thursdays  in  April  and  September.  The  first 
session  was  called  the  court  of  election,  at  which  a  governor 


UNITED  STATES  795 

and  such  magistrates,  not  less  than  six,  and  other  officers  as 
might  be  deemed  necessary,  should  be  chosen  by  the  deputies 
by  written  ballot.  At  each  court  the  deputies  were  authorized 
to  make  laws  and  dispatch  the  public  business,  the  Governor 
presiding  and  having  a  casting  vote  in  case  of  a  tie.  The 
Governor  was  required  to  be  a  former  magistrate  and  a  mem- 
ber of  some  approved  congregation  and  could  be  elected  only 
once  in  two  years  for  a  term  of  one  year.  In  calling  the 
General  Court  together  the  Governor  issued  his  summons  to 
the  constables  of  the  towns,  who  notified  the  members,  and 
notices  of  town  meetings  were  also  given  by  the  Constables. 
The  General  Court  could  only  be  adjourned  by  a  majority 
vote,  and  a  majority  of  the  members  could  call  a  session  if 
the  Governor  refused  to  do  so  when  necessary.  This  early 
constitution  is  notable  as  furnishing,  in  rough  outline,  the 
leading  principles  of  the  constitutions  of  the  future  American 
States.  The  sovereignty,  although  in  terms  vested  in  the  gen- 
eral court,  was  in  fact  in  the  freemen  of  the  colony,  who  ex- 
pressed their  will  through  the  medium  of  the  ballot  and 
annually  appointed  the  members  of  the  General  Court,  which 
was  the  active  governing  power. 

Tolerance  of  religious  ideas  among  the  Puritans  was  tol- 
erance of  their  own  beliefs  only.  No  people  ever  had  a  more 
bitter  hatred  of  what  they  regarded  as  impure  religions.  In 
November  1635  the  General  Court  of  Massachusetts  sentenced 
Roger  Williams  to  banishment  for  his  religious  and  political 
opinions,  and  in  June  of  the  following  year  he  and  a  colony 
of  others  settled  at  Providence,  Rhode  Island,  on  lands 
granted  him  by  the  chiefs  of  the  Narragansett  Indians.  Other 
settlements  in  that  neighborhood  soon  followed.  In  1643 
the  Earl  of  Warwick,  as  Governor-in-chief,  and  others  as 
commissioners  for  the  government  of  the  provinces  in  Amer- 
ica, executed  an  instrument  reciting  the  settlements  above 
named  and  the  purchase  of  lands  from  the  Indians  and  grant- 
ing to  the  inhabitants  of  the  towns  of  Providence,  Portsmouth 
and  Newport  a  free  and  absolute  charter  of  incorporation 
under  the  name  of  the  Incorporation  of  Providence  Planta- 
tions in  "the  Narragansett  Bay,  in  New  England  together 


796  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

with  full  power  and  authority  to  rule  themselves,  and  such 
others  as  shall  hereafter  inhabit  within  any  part  of  the  said 
tract  of  land,  by  such  a  form  of  civil  government,  as  by  vol- 
untary consent  of  all  or  the  greater  part  of  them,  they  shall 
find  most  suitable  to  their  estate  and  condition,"  provided  their 
laws  should  be  conformable  to  the  laws  of  England,  as  nearly 
as  might  be,  and  reserving  power  to  regulate  their  relations 
with  the  other  colonies.  This  was  in  the  reign  of  Charles  I 
after  the  Long  Parliament  came  into  power.  The  instrument 
was  not  in  form  a  royal  charter  but  was  signed  by  Robert 
Warwick  and  ten  others.  No  other  charter  was  issued  till 
after  Cromwell's  time  and  the  restoration  of  Charles  II.  In 
1662  Charles  II  issued  a  charter  to  John  Winthrop  and 
eighteen  others  by  name  and  all  such  others  as  are  or  shall  be 
admitted  free  of  the  colony,  to  be  a  body  politic  and  corporate 
under  the  name  of  Governor  and  Company  of  the  English 
Colony  of  Connecticut  in  New  England  in  America,  to  have 
a  Governor,  Deputy  Governor  and  twelve  assistants  elected 
by  the  freemen  of  the  company.  Winthrop  was  appointed 
Governor  and  twelve  others  as  assistants,  to  hold  till  their 
successors  were  chosen.  The  charter  contains  the  usual  pro- 
visions of  prior  charters  with  reference  to  trade,  liberty  of 
subjects  to  settle  there  and  preservation  of  their  rights  as 
English  citizens,  with  leave  to  fight  their  own  battles.  It 
grants  them  the  lands  of  Connecticut  and  contains  no  reserva- 
tion to  the  crown  of  power  to  appoint  any  officers  for  the 
colony.  In  the  next  year  he  gave  a  charter  to  William  Bren- 
ton  and  twenty-five  others  by  name,  including  Roger  Wil- 
liams, and  all  such  others  as  now  are  or  hereafter  shall  be 
admitted  and  made  free  of  our  "collonie  of  Providence. 
Plantations  to  be  a  corporation  under  the  name  of  The  Gov- 
ernor and  Company  of  the  English  Colony  of  Rhode  Island 
and  Providence  Plantations  in  New  England"  and  to  have  a 
Governor,  Deputy  Governor,  ten  assistants  and  a  general  As- 
sembly to  be  elected  by  the  freemen  of  the  colony,  vested 
with  full  governmental  authority.  The  other  provisions  are 
substantially  the  same  as,  though  not  identical  with,  those  in 
the  charter  of  Connecticut.     This  charter  remained  the  con- 


UNITED  STATES  797 

stitution  of  Rhode  Island,  not  only  through  the  revolutionary 
war,  but  till  1842.  In  the  same  year  Charles  II  granted  a 
charter  of  an  altogether  different  character,  to  Edward  Earl 
of  Clarendon,  George  Duke  of  Albemarle,  William  Lord 
Craven,  John  Lord  Berkeley,  Anthony  Lord  Ashley,  Sir 
George  Carteret,  Sir  William  Berkeley  and  Sir  John  Colleton, 
for  the  territory  from  the  north  end  of  Lucke  Island  in  the 
south  Virginia  seas  and  within  thirty-six  degrees  N.  L.  and  to 
the  west  as  far  as  the  south  seas,  southerly  as  far  as  the  river 
St.  Mathias,  which  bordereth  on  the  coast  of  Florida  within 
thirty-one  degrees  N.  L.  and  so  west  as  far  as  the  south  seas, 
with  the  patronage  and  advowsons  of  all  churches  as  amply 
as  any  bishop  of  Durham  ever  held,  and  as  true  and  absolute 
Lords  Proprietors  of  all  the  lands,  saving  only  faith  and  al- 
legiance to  the  king,  for  a  yearly  rental  of  twenty  marks  and 
one-fourth  of  all  gold  and  silver  ore.  The  territory  was  in- 
corporated into  a  province,  named  Carolina,  and  the  proprie- 
tors were  given  full  power  to  appoint  all  necessary  officers 
and  govern  the  province  with  the  advice  and  consent  of  the 
freemen  of  the  province  or  their  delegates  or  a  majority  of 
them.  The  proprietors  were  also  given  power  to  make  ordi- 
nances, without  assembling  the  freemen,  and  to  establish  ports 
and  collect  customs  for  their  use,  to  confer  titles  of  honor, 
to  declare  martial  law  in  case  of  sedition,  and  to  organize 
armies  and  fight  enemies.  In  1665  a  second  charter  was 
granted,  extending  the  boundaries  to  Latitude  twenty-nine  de- 
grees. Under  this  charter  a  most  peculiar  scheme,  called  The 
Fundamental  Constitutions  of  Carolina,  was  framed  in  1669 
by  John  Locke,  containing  120  sections.  It  provided  that  the 
eldest  lord  proprietor  should  be  called  Palatine  and  the  others 
Admirals,  Chamberlains,  Chancellors,  Constables,  Chief  Jus- 
tices, High  Stewards  and  Treasurers.  The  province  was  to 
be  divided  into  counties,  each  county  into  eight  seigniories, 
eight  baronies  and  four  precincts  and  each  precinct  to  have 
six  colonies.  An  hereditary  nobility  was  to  be  created,  styled 
landgraves,  casiques  and  barons,  and  provisions  calculated  to 
keep  the  great  estates  together  were  made.  This  instrument 
is  rather  curious  than  important,  as  it  was  never  executed  and 


798  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

left  no  marked  impression  on  future  institutions.  The  spirit 
of  favoritism  was  further  exhibited  by  Charles  in  1664  in  the 
grant  to  his  brother  James,  Duke  of  York,  of  Maine  (which 
had  been  granted  to  Ferdinando  Gorges  in  1639),  Long 
Island,  the  country  between  the  Connecticut  and  Hudson 
rivers  and  from  the  west  side  of  the  Connecticut  river  to  the 
east  side  of  Delaware  Bay,  the  islands  of  Martins  Vineyard 
and  Nantuckett,  with  "full  and  absolute  power  and  authority 
to  correct,  punish,  pardon,  govern  and  rule  all  such  of  the  sub- 
jects of  us  our  heires  and  successors  as  from  time  to  time 
adventure  themselves  into  any  of  the  parts  or  places  afore- 
said according  to  such  lawes  ordinances,  direccons  and  in- 
struments as  by  our  dearest  brother  or  his  assigns  shall  be 
established  and  in  defect  thereof  in  cases  of  necessity  accord- 
ing to  the  good  direccons  of  his  deputyes,  commissioners, 
officers  and  assigns"  but  as  nearly  as  may  be  according  to  the 
laws  of  England  and  subject  to  an  appeal  to  the  king.  A 
yearly  rental  of  forty  beaver  skins,  when  demanded,  was 
reserved.  No  mention  is  made  of  any  system  of  popular 
representation  in  the  government  of  the  grant,  but  full  and 
arbitrary  authority  is  given  to  rule  with  the  usual  privilege  of 
subjects  to  emigrate,  etc.  In  1629  The  New  England  Com- 
pany made  a  grant  of  lands  between  the  Merrimac  and 
Piscataqua  Rivers  to  Captain  John  Mason,  and  this  grant  was 
confirmed  by  another  by  the  council  ''assembled  in  publick 
court"  which  gave  the  name  of  New  Hampshire  to  the  district 
granted.  In  1680  Charles  II  issued  a  commission  restraining 
the  assembly  of  Massachusetts  from  exercising  authority 
over  New  Hampshire  and  providing  a  President  and  council 
of  nine,  to  be  a  court  of  record  for  the  administration  of 
justice  in  New  Hampshire,  from  which  an  appeal  in  matters 
involving  £50  or  more  might  be  taken  to  the  king.  The  laws 
of  England  were  to  be  followed  as  far  as  applicable  and  a 
general  assembly  was  to  be  called  with  legislative  power. 

The  next  charter  was  that  issued  to  William  Penn  in  1681 
for  Pennsylvania.  He  was  made  the  proprietor  with  full 
power  to  govern  the  colony  "by  and  with  the  advice  assent 
and   approbation   of   the   Freemen   of   said    Country   or   the 


UNITED  STATES  799 

greater  parte  of  them,  or  of  their  Delegates  or  Deputies,"  to 
be  assembled  as  Perm  might  direct.  The  only  reservation  to 
the  crown  was  fealty  and  one-fifth  the  gold  and  silver  ore. 
A  transcript  of  all  laws  passed  was  required  to  be  transmitted 
to  the  privy  council  and  might  be  annulled  within  six  months, 
otherwise  to  stand.  Power  was  conferred  to  establish  ports 
of  entry  and  collect  Customs  and  Subsidies.  An  agent  or 
attorney  resident  at  London  was  required  to  be  appointed  and 
reported  to  the  Clerk  of  the  Privy  Council,  to  appear  in  the 
courts  at  Westminster  to  answer  for  misdemeanors  of  Penn, 
his  heirs  or  assigns.  Full  power  was  conferred  on  Penn  to 
convey  the  land  as  he  might  see  fit,  notwithstanding  the  pro- 
visions of  the  statute  of  ''Quia  Emptores  Terrarum/'  Penn 
and  his  grantees  were  authorized  to  erect  manors  and  hold 
Courts  Baron  thereon.  The  charter  further  provides,  ''That 
Wee  our  heires  and  Successors  shall  at  no  time  hereafter  sell 
or  make  or  cause  to  be  sett,  any  imposition,  custome  or  other 
taxation  rate  or  contribution  whatsoever,  in  and  upon  the 
dwellers  and  inhabitants  of  the  aforesaid  province,  for  their 
Lands,  tenements,  goods  or  chattels  within  the  said  province, 
or  in  and  upon  any  goods  or  merchandise  within  the  said 
Province  or  to  be  laden  or  unladen  within  the  ports  or  har- 
bours of  the  said  Province,  unless  the  same  be  with  the  con- 
sent of  the  Proprietary,  or  chiefe  governor,  and  assembly  or 
by  act  of  Parliament  in  England."  No  provision  similar  to 
the  foregoing  appears  in  any  prior  charter.  It  will  be  noticed 
however  that  this  authorizes  taxation  of  the  colony,  either  by 
the  consent  of  their  representatives  or  of  Parliament. 

William  Penn  was  a  remarkable  man,  a  favorite  of  the 
king,  though  subjected  to  persecution  because  a  Quaker  in 
faith.  Born  in  the  privileged  class,  he  was  an  ardent  re- 
former. He  kept  in  mind  the  great  truth,  so  constantly  dis- 
regarded by  statesmen,  that  peace  and  social  order  are  mainly 
dependent  on  confidence  in  the  justice  and  friendship  of  those 
concerned,  rather  than  on  superior  force.  Though  given  a 
proprietory  charter  to  the  whole  territory  by  the  English 
king,  he  respected  the  rights,  not  only  of  the  Swedes  and 
Dutch  who  had  already  made  settlements  there,  but  of  the 


8oo  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Indians  as  well,  from  whom  he  obtained  by  treaty  the  right 
to  make  settlements  in  their  country.  He  drew  up  and  pub- 
lished on  July  II,  1681  ''Certain  conditions  or  concessions 
agreed  upon  by  William  Penn,  Proprietary  and  Governor  of 
the  Province  of  Pennsylvania,  and  those  who  are  the  adven- 
turers and  purchasers  in  the  same  province"  in  which  provi- 
sions were  made  with  reference  to  the  sale  of  the  land  and 
the  laying  out  of  towns,  with  various  regulations  calculated 
to  secure  just  treatment  of  the  Indians  both  as  to  occupancy 
of  land  and  trading.  In  1682  he  published  his  "Frame  of 
Government  of  Pennsylvania"  with  a  preface  in  which  he 
expressed  briefly  his  views  on  the  principles  of  government 
and  said  among  other  things : 

"I  do  not  find  a  model  in  the  world  that  time,  place  and 
some  singular  emergencies  have  not  necessarily  altered;  nor 
is  it  easy  to  frame  a  civil  government,  that  shall  serve  all 
places  alike." 

'Thirdly,  I  know  what  is  said  by  the  several  admirers  of 
monarchy,  aristocracy  and  democracy  which  are  the  rule  of 
one,  a  few,  and  many  and  are  the  three  common  ideas  of 
government,  when  men  discourse  on  the  subject.  But  I  chuse 
to  solve  the  controversy  with  this  small  distinction  and  it  be- 
longs to  all  three.  Any  government  is  free  to  the  people 
under  it  (whatever  be  the  frame)  where  the  laws  rule,  and  the 
people  are  a  party  to  those  laws,  and  more  than  this  is  ty- 
ranny, oligarchy  or  confusion." 

"But  lastly,  when  all  is  said,  there  is  hardly  one  frame  of 
government  in  the  world  so  ill  designed  by  its  founders,  that 
in  good  hands,  would  not  do  well  enough;  and  story  tells  us, 
the  best  in  ill  ones,  can  do  nothing  that  is  great  or  good, 
witness  the  Jewish  and  Roman  states.  Governments  like 
clocks  go  from  the  motion  men  give  them,  and  as  govern- 
ments are  made  and  moved  by  men,  so  by  them  they  are 
ruined  too.  Wherefore  governments  rather  depend  upon 
men,  than  men  upon  governments.  Let  men  be  good,  and 
the  government  cannot  be  bad ;  if  bad,  let  the  government  be 
never  so  good,  they  will  endeavor  to  warp  and  spoil  it  to 
their  turn." 


UNITED  STATES  8oi 

"That  therefore,  which  makes  a  good  constitution  must 
keep  it,  viz.,  men  of  wisdom  and  virtue,  quahties,  that  because 
they  descend  not  with  worldly  inheritances,  must  be  carefully 
propagated  by  a  virtuous  education  of  youth." 

It  would  be  difficult  to  compress  more  political  wisdom  into 
a  single  sentence  than  is  contained  in  the  last  one  quoted. 
The  general  frame  of  his  government  provided  for  .a  proprie- 
tary Governor,  a  provincial  council  of  seventy-two,  and  a 
General  Assembly,  elected  by  the  freemen  of  the  province ;  the 
council  to  be  divided  into  four  committees  charged  with  over- 
sight of  different  matters,  one  of  which  was  "a  committee  of 
manners,  education  and  arts,  that  all  wicked  and  scandalous 
living  may  be  prevented."  A  body  of  laws,  also  prepared  in 
England,  in  forty  sections,  was  attached  to  the  frame  of 
government. 

The  settlement  of  the  colony  proceeded  very  rapidly,  and 
during  the  year  1682  about  2,000  persons,  mostly  Quakers, 
came  in.  Penn  obtained  from  the  Duke  of  York  a  grant  of 
the  Delaware  country  and  a  release  of  his  claims  on  Pennsyl- 
vania, and  went  over  to  America.  He  divided  the  country 
into  six  counties  and  summoned  the  first  general  assembly  at 
Chester  in  December  1682.  A  modified  frame  of  govern- 
ment reducing  the  number  of  members  of  the  council  to 
eighteen  and  fixing  the  representation  in  the  assembly  at 
thirty-six — six  from  each  county^ — was  signed  by  Penn  and 
accepted  by  the  members  of  the  Council  and  Assembly  on 
2-2-1683.  The  active  governing  power  was  vested  in  the 
Proprietary  Governor  and  council,  by  whom  laws  were  pre- 
pared and  submitted  to  the  assembly  for  approval. 

After  the  accession  of  William  and  Mary  to  the  British 
throne,  Benjamin  Fletcher,  Governor  of  New  York,  was  conj- 
missioned  Captain  General  and  Governor  of  Pennsylvania, 
but  the  government  was  restored  to  Penn,  who  appointed  Wil- 
liam Markham,  Governor.  A  still  further  modification  of  the 
frame  of  government  was  deemed  necessary  and  adopted  by 
the  Governor,  Council  and  Assembly.  The  Council  was  to 
consist  of  two  persons  chosen  from  each  county  and  the  As- 
sembly  of    four   from   each   county.      The   qualifications    of 


8o2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

electors  were  that  they  must  be  free  denizens,  twenty-one 
years  of  age  and  have  fifty  acres  of  land,  ten  of  which  were 
^'seated  and  cleared,"  or  £50  clear  in  other  property  and  have 
resided  two  years  in  the  province.  Much  space  is  given  to 
* 'attests"  to  be  taken  by  public  officers  in  lieu  of  official  oaths. 
The  ^  principle  that  the  legislative  bodies  should  be  the  sole 
judges  of  the  election  of  their  members  was  incorporated,  and 
members  of  the  Assembly  were  allowed  four  shillings  per 
day,  the  speaker  and  members  of  the  Council  five  shillings  and 
all  of  them  two  pence  per  mile  for  traveling  expenses  going 
and  coming.  Bonds  from  sheriffs  and  clerks  were  required. 
Two-thirds  of  the  members  of  the  Assembly  were  required 
for  a  quorum  on  the  passage  of  a  law  or  judgment  of  impeach- 
ment. The  executive  power  was  vested  in  the  Governor  and 
Council  and  also  the  management  of  the  treasury,  from  which 
no  payments  were  allowed,  except  "what  hath  been  agreed 
upon  by  the  Governor,  Council  and  Assembly."  Legislation 
might  be  initiated  by  the  Governor  and  Council  or  the  repre- 
sentatives of  the  freemen  in  the  Assembly  might  propose  such 
laws  as  should  be  agreed  on  by  a  majority  of  them.  The  last 
and  final  act  of  constitutional  legislation  by  Penn  was  a 
charter  given  by  him  and  accepted  by  the  Council  and  Assembly 
on  Oct.  28,  1 701.  It  refers  to  the  various  grants  to  him,  to 
the  prior  frames  of  government,  states  that  they  were  found 
in  some  parts  not  suitable  to  present  conditions,  and  contains 
eight  articles.  The  first  is  a  strong  guaranty  of  religious 
liberty,  and  allows  persons  to  hold  office  who  take  the  attests 
provided  for  in  existing  laws,  without  oath.  The  assembly 
was  to  consist  of  four  from  each  county  with  power  to  choose 
a  speaker  and  their  other  officers  and  be  judges  of  the  qualifi- 
cations and  elections  of  their  members,  appoint  committees, 
prepare  bills  and  impeach  criminals.  The  freemen  in  each 
county  at  the  time  of  electing  members  of  the  assembly  were 
authorized  to  nominate  two  persons  for  each  of  the  offices  of 
sheriff  and  coroner,  from  whom  the  Governor  could  appoint 
one  each  for  three  years,  "if  so  long  they  behave  themselves 
well."  It  was  further  provided  "That  all  criminals  shall  have 
the  same  privileges  of  Witnesses  and  Council  as  their  Prose- 


UNITED  STATES  803 

ciitors";  that  persons  licensed  to  keep  tavern  must  be  recom- 
mended by  the  Justices  of  the  county,  and  that  the  estate  of 
a  suicide  should  go  to  his  wife  and  children.  In  the  closing 
paragraph  it  provides  for  a  separation  of  Uelaware  from 
Pennsylvania  in  case  either  of  them  so  desires  w^ithin  three 
years,  and  guarantees  the  liberties  of  the  charter  to  each. 
Thio  separation  took  place  and  Delaware  was  organized  as  a 
separate  colony  under  the  charter.  This  charter  does  not 
cover  specifically  nearly  so  many  matters  as  the  prior  frames 
of  government,  but  seems  to  have  been  intended  to  provide 
for  a  few  matters  then  uppermost  in  his  mind.  It  remained 
in  force  until  the  revolution,  as  the  fundamental  law  of 
Pennsylvania. 

Among  the  most  conspicuous  characteristics  of  the  Puritan 
settlers  of  New  England  were  religious  intolerance  and  a 
determination  to  manage  their  own  affairs  without  any  inter- 
ference from  England.  Quakers  seem  to  have  fared  worst  of 
all  and  some  of  them  were  executed.  The  settlers  of  New 
England  suffered  very  little  from  the  Indians  till  King 
Philip's  War,  which  broke  out  in  June,  1675,  and  finally  in- 
volved the  settlers  in  a  fierce  struggle  with  the  confederated 
tribes  of  New  England.  About  600  whites  perished,  but  the 
Indian  tribes  were  nearly  exterminated.  Parliament  had  be- 
fore that  time  levied  duties  of  tonnage  and  poundage  on  the 
trade  of  the  colonies  and  began  to  look  to  them  as  important 
possessions.  The  colonists  fought  the  Indians  in  King  Philip's 
War  without  the  aid  of  the  mother  country,  but  this  served 
rather  to  call  attention  to  their  power  and  independent  spirit 
than  to  ingratiate  them  with  the  King.  In  1683  he  thought 
fit  to  take  away  their  privileges,  and  in  order  to  do  so  made 
use  of  the  court  of  King's  Bench,  which  issued  a  writ  of  quo 
■zvarranto  to  the  Governor  and  Company  of  Massachusetts,  on 
^hich,  at  the  Trinity  Term  1684,  a  judgment  was  entered, 
"that  the  letters  patent  and  the  enrollment  thereof  be  an- 
nulled." This  was  but  one  of  the  many  instances  of  the 
subserviency  of  the  judges  to  the  power  that  appointed  them. 
James  II  sent  Edmond  Andros  as  Governor  to  Massachusetts 
^vhere  he  arrived  in  1686  but,  on  the  overthrow  of  James  and 


804  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  accession  of  William  and  Mary,  the  people  of  Massachu- 
setts rose  in  arms,  imprisoned  Andros  and  elected  their  own. 
governor,  assistants  and  deputies.  In  1691  William  and. 
Mary  issued  a  new  charter,  reciting  the  issuing  of  the  former 
charters  and  the  settlement  of  the  colonies  thereunder,  and 
that  at  Trinity  term  36th  Charles  II,  a  second  judgment  was. 
given  in  our  Court  of  Chancery  then  sitting  at  Westminster 
upon  a  writ  of  Scire  Facias  against  the  Governor  and  Com- 
pany of  the  Massachusetts  Bay  in  New  England  that  said 
letters  patent  be  cancelled,  and  then  ''wills  and  ordeynes" 
"that  the  Territories  and  CoUonyes  commonly  called  or  knowa 
by  the  Names  of  the  Colloney  of  the  Massachusetts  Bay  and 
Collony  of  New  Plymoth,  the  Province  of  Main,  the  Terri- 
torie  called  Accadia  or  Nova  Scotia  and  all  that  tract  of  land 
lying  betweene  the  said  territories  of  Novo  Scotia  and  said 
province  of  Main  be  erected  united  and  incorporated  into  one 
reall  Province  by  the  name  of  Our  Province  of  the  Massa- 
chusetts Bay  in  New  England"  and  then  grants  to  them  the 
land  by  particular  boundaries,  reserving  one-fifth  the  gold 
and  silver  ore;  preserving  to  private  persons,  towns,  villages, 
colleges  and  schools  the  lands  held  by  them  under  prior 
grants.  The  administration  of  the  colony  was  placed  under 
a  Governor,  a  Lieutenant  or  Deputy  Governor  and  a  Secretary 
of  the  Province  to  be  appointed  by  the  king,  twenty-eight  as- 
sistants and  a  general  court  or  assembly  made  up  of  twa 
freeholders,  elected  from  each  town  by  freeholders  owning 
land  worth  forty  shillings  per  year  or  other  property  worth 
forty  pounds.  The  twenty-eight  councillors  were  to  be  chosen 
by  the  Assembly.  The  appointment  of  judges,  sheriffs,  mar- 
shals, justices  of  the  peace  and  other  officers  was  entrusted  to 
the  Governor  with  the  advice  and  consent  of  the  Council. 
Oaths  of  allegiance  were  required  from  all  officers.  The  in- 
habitants of  the  province  and  their  children  were  guaranteed 
the  liberties  of  English  subjects  with  liberty  of  conscience 
(except  papists).  Full  governing  power  was  conferred  on  the 
General  Court,  which  consisted  of  the  Governor,  or  Deputy, 
the  Council  and  Assembly,  with  authority  to  establish  courts 
of  general  jurisdiction,  subject  to  an  appeal  to  the  king  in 


UNITED  STATES  805 

council  in  civil  causes  involving  £300.  The  governor  was 
given  a  veto  on  legislation,  and  all  acts  of  the  Assembly  were 
required  to  be  transmitted  to  the  king,  who  reserved  the  power 
to  annul  them  within  three  years. 

A  controversy  having  arisen  with  reference  to  the  right  of 
the  Assembly  to  choose  its  speaker,  in  1726  George  I  issued 
an  explanatory  charter  giving  the  Assembly  the  right  to  elect, 
but  the  Governor  might  disapprove  the  choice,  when  a  second 
election  was  required.  The  assembly  was  given  power  to 
adjourn,  not  exceeding  two  days,  without  the  consent  of  the 
Governor,  but  the  Governor  was  authorized  to  adjourn,  dis- 
solve and  prorogue  it.  These  charters  seriously  abridged  the 
rights  of  the  colonists  to  govern  themselves  and  were  never 
satisfactory  to  the  people. 

New  Jersey,  as  we  have  seen,  was  included  in  the  grant  to 
the  Duke  of  York  with  Maine  and  New  York.  In  1664  he 
granted  New  Jersey  to  Lord  John  Berkeley  and  Sir  George 
Carteret.  The  government  of  the  colony  was  then  regulated 
in  accordance  with  "Concessions"  made  by  the  Lords  Pro- 
prietors of  the  province,  which  were  amended  from  time  to 
time  till  1702,  when  the  proprietors  surrendered  their  rights 
to  the  crown  and  it  was  then  governed  as  a  royal  province. 

The  territories  of  both  North  and  South  Carolina  were  in- 
cluded in  the  Carolina  proprietary  grants,  and  no  separate 
royal  charter  was  ever  issued  for  either. 

The  last  Royal  charter  issued  was  by  George  II  in  1732  to 
John  Lord  Viscount  Percival  and  nineteen  others  named,  who 
were  made  a  corporation  under  the  name  of  The  Trustees  for 
establishing  the  colony  of  Georgia,  in  America,  with  power  to 
hold  land  in  England  of  not  over  £1,000  yearly  value.  Perci- 
val was  made  President,  with  a  council  of  fifteen  to  be  in- 
creased to  twenty- four.  The  charter  grants  seven-eighths  only 
of  the  lands  from  Savannah  River  to  the  Alatamaha  and 
westerly  from  the  heads  of  the  rivers  to  the  south  sea,  with 
power  to  sell  and  convey  the  same  to  purchasers,  who  were  to 
be  required  to  pay  the  king  four  shillings  yearly  per  100  acres, 
beginning  ten  years  after  the  sale.  The  corporation  was  given 
power  to  make  laws  and  appoint  officers  for  the  territory  for 


8o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

twenty-one  years,  to  be  approved  by  the  king  in  council.  The 
appointment  of  officers  and  employees  of  the  corporation 
from  its  members  was  prohibited,  and  the  corporation  was 
also  prohibited  from  selling  land  to  its  members  and  from 
selling  over  500  acres  to  one  person.  The  governor  of  the 
colony  was  to  be  appointed  by  the  council  of  the  corporation, 
subject  to  the  approval  of  the  king.  After  twenty-one  years 
the  government  was  to  be  such  as  the  king  should  ordain. 
This  being  the  nearest  colony  to  the  Spanish  settlements  in 
Florida,  it  was  not  long  till  hostilities  broke  out  between  the 
English  settlers  of  Georgia  and  the  Spanish  of  Florida. 
Probably  ovring  to  this  situation  and  hostilities  with  the  In- 
dians, the  settlement  of  Georgia  progressed  slowly  and,  at  the 
end  of  the  time  limited  in  the  charter,  the  king  assumed  the 
government  through  his  appointees. 

In  some  respects  the  early  settlement  of  America  resembles 
that  of  England  by  the  Jutes,  Angles  and  Saxons.  Both 
were  popular  movements  for  permanent  change  of  habitation, 
by  which  the  natives  were  driven  out  to  make  room  for  the 
invaders.  In  both  the  invaders  fought  their  own  battles  and 
made  headway  as  best  they  could  without  the  backing  of  the 
military  force  of  the  mother  country.  In  other  respects  there 
were  marked  differences.  The  Saxons  met  a  people  of  the 
same  race,  not  greatly  their  inferiors  in  any  respect,  and  on 
the  whole  more  peaceful  and  civilized  than  themselves.  To 
reach  England  but  a  short  voyage  was  involved,  and  the  in- 
vaded country  was  at  least  under  as  good  tillage  and  as  well 
supplied  with  domestic  animals  as  that  the  invaders  came 
from.  The  settlers  of  America  found  a  strange  race  of  indo- 
lent hunters,  wholly  unaccustomed  to  European  modes  of  life. 
Though  the  early  settlement  of  Virginia  was  attended  with 
heavy  losses  from  Indian  hostility,  the  general  rule  was  that 
there  was  comparatively  little  warfare  between  the  English 
settlers  and  the  Indians  prior  to  the  breaking  out  of  hostili- 
ties between  France  and  England  in  1689.  In  New  England 
there  was  peace  with  the  natives  till  1636,  when  the  Pequot 
Indians  killed  a  trader  on  the  Connecticut  River,  for  which  in 
that  and  the  following  year  the  tribe  was  nearly  exterminated. 


UNITED  STATES  807 

The  whole  tribe  was  treated  as  responsible  for  the  murder,  of 
which  most  of  them  were  of  course  entirely  innocent.  King 
Philip's  War  in  1675  was  a  much  more  serious  affair  and 
resulted  in  considerable  loss  to  the  whites,  but  this  came  fifty- 
five  years  after  the  landing  of  the  Pilgrims  at  Plymouth,  and 
resulted,  as  did  all  other  wars  with  the  natives,  in  their  final 
crushing  defeat.  In  Pennsylvania  just  treatment  of  the 
Indians  secured  peace  for  a  time.  The  Dutch  in  New  Nether- 
lands had  trouble  with  them  mainly  because  of  cruel  treat- 
ment. The  growth  of  ideas  of  self-government  and  real 
independence  of  the  home  government  was  entirely  natural 
and  a  logical  sequence  of  the  system  followed.  While  the 
Plymouth  colony  made  its  start  without  any  royal  sanction, 
home  corporation  or  proprietary  founder,  the  general  rule 
was  that  a  company  was  first  formed  in  England  to  promote 
the  founding  of  a  colony  or  a  single  grantee  from  the  crown 
undertook  the  task.  The  first  steps  taken  in  England  were 
by  private  persons  who  raised  the  necessary  funds,  procured 
the  ships  and  induced  hardy  and  resolute  men  and  women  to 
make  the  long  voyage,  and  settle  in  the  strange  land.  The 
chief  motive  of  the  promoters  and  proprietors  was  private 
gain.  The  gold  and  silver  brought  over  by  the  Spaniards 
from  Mexico  and  South  America  excited  the  cupidity  of  the 
English  kings,  who  expected  to  find  these  metals  in  their 
colonies  also.  It  is  a  noticeable  fact  that  in  all  charters,  ex- 
cept that  for  Georgia,  there  is  a  reservation  of  a  share  of  the 
gold  and  silver  ore,  but  not  of  rental  of  the  land.  The  true 
wealth  of  the  new  country  was  not  apprehended,  but  the  semi- 
barbaric  notion  of  the  value  of  so-called  precious  metals  was 
uppermost  in  the  minds  of  the  English  kings.  The  value  of 
the  food  supply  and  other  usable  commodities,  now  obtained 
in  such  great  abundance  from  the  United  States,  was  regarded 
as  of  far  less  importance  than  gold  and  silver.  The  gathering 
into  the  ships  of  the  bold  spirits  who  came  across  the  ocean, 
was  the  primary  work  of  founding  the  colonies.  No  great 
number  ever  came  at  one  time  or  at  the  instigation  of  any  one 
person  or  corporation,  though  several  shiploads  sometimes 
came  together,  and  others  followed  at  longer  or  shorter  in- 


8o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tervals,  according  to  circumstances.  No  powerful  home  cor- 
poration like  the  East  India  Company  was  evolved  as  a  result 
of  these  operations.  The  settlers,  once  landed  in  America, 
were  from  the  necessities  of  the  situation  forced  to  shift  for 
themselves.  The  Virginia  and  Massachusetts  colonists  had 
to  treat  with  the  Indians  on  their  own  authority,  and  to  or- 
ganize their  fighting  forces  whenever  hostilities  were  threat- 
ened. This  was  true  everywhere  in  the  parts  of  America 
settled  by  the  British.  It  is  significant  that,  in  all  the  charters 
from  the  king,  express  authority  is  given  the  grantees  to  or- 
ganize armies  and  make  war  to  maintain  possession  of  the 
territory  granted.  The  sovereign  did  not  assume  the  function, 
usually  so  jealously  guarded,  of  directing  the  military  forces 
of  the  colonies,  but  left  that  to  the  proprietors  or  colonists 
themselves.  They  were  without  any  other  means  of  support- 
ing their  forces  than  such  as  they  contributed  for  that  purpose. 
Now  the  primary  functions  of  all  the  governments  of  the 
earth,  from  their  inception,  have  been  the  gathering  and  com- 
manding of  armies  and  the  raising  of  supplies  for  them.  Even 
at  this  day  the  principal  functions  of  the  governments  of 
Europe  are  connected  with  the  organization  and  maintenance 
of  mihtary  forces.  By  these  charters  such  functions  were 
transferred  to  private  hands.  The  effect  of  this  policy  it 
would  seem  might  easily  have  been  foreseen.  The  colonists 
found  in  America  illiterate  savages,  indolent  and  filthy,  yet 
exceedingly  proud  of  their  independence  and  individuality. 
The  Indian  owed  allegiance  to  no  ruler.  He  followed  the 
chief  of  his  choice.  He  roamed  where  he  pleased  through  the 
forest.  He  paid  no  tax,  he  served  no  master.  He  was  sloth- 
ful and  improvident  to  the  last  degree,  and  this,  rather  than 
wars,  accounts  for  his  destruction.  In  the  long  course  of 
time  the  natural  process  of  evolution  exterminates  the  war- 
rior, the  idler,  the  improvident  and  filthy.  The  warrior, 
though  he  may  kill  many,  kills  warriors  mostly  and  is  himself 
the  target  for  his  adversaries.  The  idler  and  the  wasteful  man 
or  tribe  sooner  or  later  perish  from  famine.  The  filthy  fall 
a  prey  to  contagious  and  epidemic  diseases,  which  spread  and 
fester  under  conditions  so  favorable.    Thus  the  Indian,  partly 


UNITED  STATES  809 

by  war,  but  more  by  famine  and  disease,  wasted  away  before 
the  advancing  whites.  His  powers  of  organization  were 
hmited.  Confederacies  of  tribes  were  effected  at  times,  but 
hunters,  accustomed  to  supply  their  daily  wants  from  the 
chase,  could  not  organize  and  feed  an  army.  An  Indian  raid 
came  like  a  thunder  storm  and  quickly  passed  away.  A  great 
army  of  savages,  if  once  drawn  together,  would  necessarily 
perish  from  want  of  supplies.  To  subsist  on  forage  they  must 
scatter.  Thousands  of  years  of  warfare  in  Europe  have 
taught  the  importance  of  supplies  of  food  and  munitions  of 
war  in  order  to  use  an  army  once  organized.  The  colonists 
came  with  knowledge  of  the  advantages  of  organization,  but 
were  largely  of  such  hardy  and  independent  spirits  that  they 
often  suffered  through  their  inclination  to  act  separately.  The 
notions  of  social  order,  government,  property  rights,  and 
laws,  which  they  brought  with  them  from  the  mother  country, 
led  all  the  colonies  to  organize  such  governmental  agencies 
as  appeared  to  them  necessary  in  their  situation.  The  May- 
flower Pilgrims,  as  we  have  seen,  signed  a  compact  before 
landing.  The  first  permanent  colony  of  Virginia  followed  the 
leadership  of  Captain  John  Smith.  As  the  colonies  increased 
in  size  and  settlements  multiplied,  it  was  found  impracticable 
for  all  the  settlers  to  meet  and  consult,  so  delegates  were 
chosen  from  each  town  or  district  to  represent  it  in  a  general 
meeting.  The  organization  did  not  proceed  exactly  along 
lines  subsequently  maintained,  but  as  time  wore  on  the  ad- 
vantages of  a  wider  and  wider  combination  to  insure  concert 
of  action  against  common  foes  by  all  the  English  colonies  was 
more  and  more  felt.  In  the  early  days  the  home  government 
paid  little  heed  to  conditions  in  America.  There  was  often 
much  friction  between  governors  sent  out  from  England  and 
the  colonists.  Scions  of  nobility,  reared  in  England,  were 
often  sent  over,  who  had  no  conception  of  the  needs  of  the 
colonies  they  came  to  govern.  The  result  was,  in  most  if  not 
all  instances,  that  the  colonists  refused  to  be  guided  by  them 
and  sooner  or  later  forced  their  recall.  Popular  institutions 
took  their  most  advanced  form  in  New  England,  where  the 
town  meeting,  into  which  all  the  freemen  of  the  town  gathered. 


Sio  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  the  governmental  unit.  These  units  acted  in  concert, 
through  an  Assembly  of  delegates  chosen  by  each,  who  in 
turn  selected  the  executive  officers.  The  freemen  in  town 
meeting  regulated  all  the  concerns  of  the  town,  leaving  to  the 
assembly  only  matters  of  general  concern.  This  was  very 
similar  to  the  ancient  Saxon  system  at  the  time  of  the  first 
invasions  of  England,  except  that  the  Saxons  had  no  repre- 
sentative bodies.  In  the  early  days  of  New  England  there 
were  several  separate  colonies  in  each  of  the  small  territories 
of  Massachusetts,  Connecticut  and  Rhode  Island,  and  the 
subsequent  consolidations  were  mainly  the  work  of  the  colo- 
nists, effected  through  new  royal  charters,  obtained  on  their 
petitions. 

So  early  as  May  19,  1643,  ^^  alliance  was  formed  by  the 
Plymouth,  Massachusetts  Bay,  Connecticut  and  New  Haven 
colonies  for  matters  of  common  concern.  The  Indians,  the 
French  on  the  north  and  Dutch  on  the  west,  whose  hostility 
they  feared,  led  them  to  join  for  their  defense.  They  entered 
into  a  written  compact,  embodied  in  a  preamble  and  eleven 
articles.  At  this  time  these  colonies  are  said  to  have  had  an 
aggregate  population  of  about  24,000,  living  in  thirty-nine 
towns,  and  took  the  name  of  the  United  Colonies  of  New 
England.  The  affairs  of  the  confederacy  were  placed  in 
charge  of  two  commissioners  from  each  colony,  but  each 
colony  remained  independent  as  to  all  its  local  affairs.  This 
confederacy  continued  in  existence  for  a  number  of  years. 
As  the  colonies  grew  in  population  and  came  to  have  more 
intercourse  with  each  other,  the  idea  of  joining  forces  for 
their  mutual  protection  gained  force. 

The  most  powerful  enemy  against  whom  they  had  to  con- 
tend was  not  the  savage  natives,  but  the  civilized  French,  who, 
having  possession  of  Canada  on  the  north  and  Louisiana  in 
the  southwest,  formed  a  chain  of  posts  along  the  Great  Lakes, 
and  the  Ohio  and  Mississippi  Rivers  to  connect  them,  and 
constantly  threatened  the  English  settlements  from  the  rear. 
Each  nation  sought  alliances  with  the  natives.  The  French 
were  rather  the  more  successful  and  attached  the  powerful 
tribes  of  the  north  to  their  interests.     The  British  however 


UNITED  STATES  8ii 

secured  the  friendship  of  the  Five  Nations  of  New  York.  Nu- 
merous conferences  were  held,  not  only  by  the  Governors  of 
New  York,  but  by  representatives  of  other  states  with  the 
chiefs  of  these  powerful  tribes.  So  early  as  1684  one  of  these 
conferences  was  held  at  Albany,  at  which  Virginia,  Maryland, 
Massachusetts  and  New  York  were  represented.  It  was 
deemed  a  matter  of  great  importance  to  secure  and  hold  the 
friendship  of  these  Indians,  who  occupied  the  border  region 
between  the  English  and  French  settlements.  Similar  con- 
ferences, though  with  a  varying  representation  of  colonies, 
were  held  in  1690- 1694,  1 722-1 748  and  1751.  In  1698  Wil- 
liam Penn  gave  out  a  plan  for  the  union  of  the  American 
colonies,  but  nothing  came  of  it. 

The  attempts  to  govern  the  colonies  from  England  proved, 
in  nearly  every  instance,  a  failure  because  of  a  want  of  knowl- 
edge of  the  situation  of  affairs  in  America,  and  especially  of 
a  lack  of  understanding  of  American  character,  which  gener- 
ation by  generation  developed  under  conditions  very  dissimilar 
from  those  existing  in  England.  Most  of  the  country  had 
been  given  out  to  great  landholders,  but  the  actual  settlers 
were  not  of  the  aristocratic  class.  The  population  was  almost 
entirely  rural,  but  it  was  not  an  English  rural  society.  Though 
great  proprietors  sought  in  most  of  the  states  to  establish  a 
rent  paying  tenantry  and  succeeded  in  doing  so  in  some  parts, 
the  general  rule  was  that  the  settlers  soon  became  independent 
freeholders.  This  was  the  case  especially  in  New  England, 
where,  except  in  Maine  and  New  Hampshire,  there  was  no 
great  lord  proprietor.  Clearing  forests,  building  houses  in 
the  wilderness,  defending  against  Indians  and  hunting  wild 
beasts  developed  not  merely  a  strong,  hardy  and  courageous 
race  but  a  self-reliant  one.  The  government  of  Great  Britain 
was  far  away  and  unsympathetic.  In  their  local  gatherings, 
and  even  in  meetings  from  the  various  colonies,  men  came 
together  who  were  confronted  with  similar  difficulties  and 
readily  understood  each  other's  wants  and  abilities.  Nearly 
all  the  governors  sent  over  from  England  came  imbued  with 
ideas  of  kingly  prerogative.  For  these  the  colonists  cared 
little,  because  they  served  no  purpose  among  them.     Although 


8i2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

from  the  conclusion  of  peace  with  the  Dutch  in  1664  till  the 
final  revolt  of  the  colonies,  the  English  held  undisputed  pos- 
session of  the  whole  coast  from  Maine  to  Florida,  no  compre- 
hensive plan  was  formulated  by  the  king  or  parliament  for 
governing  the  country  as  a  whole,  nor  was  there  any  general 
system  applied  alike  to  all  the  colonies.  Each  claimed  its 
special  privileges  under  its  peculiar  charter,  and  above  all  the 
settlers  claimed  the  right  to  meet  their  difficulties  in  their  own 
practical  ways. 

The  colonists  brought  with  them  their  English  traditions 
and  ideas  of  right.  The  common  law  of  England,  yvith  some 
modifications  by  legislative  enactment,  was  administered  in 
the  courts  and  by  the  same  system  of  practice,  in  the  main, 
that  obtained  in  England.  In  Massachusetts  religious  zeal 
was  carried  to  extremes  of  intolerance,  and  Quakers  and 
others  were  even  hanged  for  heresy.  The  strangest  exhibition 
of  judicial  barbarity,  aside  from  this,  was  in  the  trial  and 
execution  of  poor  people,  mostly  women,  for  witchcraft.  It 
is  exceedingly  difficult  to  understand  how  such  practical  and 
shrewd  people  as  the  Puritans  could  have  believed  in  the  ex- 
istence of  a  crime  of  this  kind.  In  their  overstrained  morality 
they  became  not  a  little  hard  and  cruel.  It  happened  with 
them,  as  with  so  many  others,  that,  in  their  intense  hatred  of 
imaginary  vices,  they  committed  real  crimes  against  the  inno- 
cent. Charity  and  compassion,  the  expressions  of  a  loving 
spirit,  were  not  general  among  them.  Their  great  strength 
lay  in  their  industry,  thrift  and  the  education  of  their  chil- 
dren. Study  and  work,  under  rigid  and  gloomy  discipline, 
were  the  rule.  The  colonists  early  gave  much  attention  to 
learning.  The  first  free  school  in  America  was  established 
in  Charles  City  Virginia  in  1621.  Many  others  were  estab^ 
lished  throughout  New  England,  where  it  was  deemed  of 
especial  importance  that  all  should  diligently  study  the  Bible 
and  be  governed  by  its  teachings.  Free  schools  were  opened 
in  Maryland  in  1704  and  primary  education  of  the  young  was 
far  more  general  throughout  the  colonies,  from  the  earliest 
days,  than  in  the  mother  country.  Attention  to  higher  educa- 
tion was  also  given  at  a  time  when  the  settlements  were  very 


UNITED  STATES  813 

sparce  and  the  people  very  poor.  Of  the  great  universities, 
Harvard  was  established  in  1638,  William  and  Mary's  1693, 
Yale  1 71 6,  Princeton  1746,  Columbia  1754,  University  of 
Pennsylvania  1755,  Brov^n  1764.  In  their  beginnings  all 
were  small  and  poor  but  they  soon  exerted  powerful  influence. 

While  the  colonists  received  little  aid  from  the  king  in  their 
struggles  with  the  natives,  king-craft  in  Europe  repeatedly 
exposed  them  to  the  horrors  of  warfare  with  Europeans  and 
savages.  King  William's  struggle  with  France  for  his  Dutch 
possessions  involved  the  colonists  from  the  two  countries  in 
warfare  with  each  other,  as  well  as  with  the  savages,  from 
1689  to  1697.  The  war  of  the  Spanish  succession  in  the  reign 
of  Queen  Anne,  from  1702  to  1713,  caused  a  similar  state  of 
hostilities  in  America.  War  with  Spain  from  1739  to  1742 
occasioned  severe  fighting  with  Spanish  and  Indians  in  the 
Southern  Colonies,  and  the  claims  of  King  George's  family  in 
Germany  caused  war  with  France  again  from  1744  to  1748. 
It  is  impossible  to  tell  just  how  many  people  were  killed  in 
the  colonies  by  Indians  or  how  many  by  the  French  and 
Spanish,  but  it  is  probable  that  far  more  than  half  the  butcher- 
ies of  English  colonists  were  caused  directly  by  the  policy 
of  the  so-called  civilized  g^overnments  of  Europe,  and  that,  if 
left  to  deal  with  the  natives  in  their  own  way,  without  any 
interference  from  without,  the  colonists  would  have  suffered 
but  little  from  them. 

Very  much  has  been  said  and  written  about  the  hardships 
and  dangers  endured  by  the  early  settlers,  and  especially  con- 
cerning the  horrors  of  Indian  warfare,  yet  the  real  truth  ap- 
pears to  be  that  America  was  a  far  more  safe  and  happy  place 
to  live  in  during  the  seventeenth  and  first  half  of  the  eigh- 
teenth centuries  than  Europe.  In  1751  Franklin  estimated 
that  there  were  about  i  ,000,000  English  souls  in  America,  but 
that  not  more  than  80,000  had  been  brought  over  by  sea. 
Natural  increase  went  on,  if  this,  be  so,  at  such  a  rate  that  in 
144  years  the  population  had  been  multiplied  by  twelve  and 
one  half.  But  only  a  small  part  of  the  80,000  came  so  early. 
While  this  remarkable  increase  of  population  occurred  in 
America,  no  European  state  of  importance  made  an  increase 


8i4  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

nearly  so  great.  Definite  statistics  are  not  to  be  had  on  the 
subject,  but  the  population  of  England  probably  did  not 
double  in  the  whole  period,  and  may  not  have  increased  more 
than  fifty  per  cent.  Thus  it  is  shown  that  conditions  were 
more  than  ten,  perhaps  more  than  twenty,  times  as  favorable 
to  the  multiplication  of  the  species  in  America  as  in  England, 
during  the  very  period  so  often  mentioned  as  one  of  such 
excessive  danger  and  hardship.  War,  famine,  hard  laws, 
bloody  courts,  selfish  and  cruel  kings  and  councillors,  are 
largely  responsible  for  the  unfavorable  results  in  Europe. 
Ample  lands  with  liberty  to  make  use  of  them  as  best  they 
could,  and  comparative  exemption  from  the  burdens  of  Euro- 
pean miHtarism  and  injustice  were  the  leading  causes  of 
American  increase. 

When  the  war,  known  in  America  as  the  French  and  Indian 
war  and  in  Europe  as  the  Seven  Years'  war,  broke  out,  the 
American  colonies  had  become  important  factors  in  the  con- 
test. Before  the  formal  declaration  of  war  collisions  had 
occurred  in  the  Ohio  valley,  claimed  by  both  Virginia  and  the 
French.  The  British  ministry  perceived  the  necessity  for 
concert  of  action  among  the  colonial  forces.  Early  in  the 
spring  of  1754  the  ministers  sent  notice  to  the  colonial  gov- 
ernments, that  it  was  the  .desire  of  the  king  that  they  should 
oppose  the  encroachments  of  the  French  by  force,  and  recom- 
mended that  they  should  send  delegates  to  a  general  conven- 
tion, at  Albany,  to  form  a  league  with  the  Six  Nations  and 
provide  for  their  own  united  action.  Maryland,  New  York, 
Pennsylvania  and  the  New  England  colonies  responded.  Ben- 
jamin Franklin  was  a  delegate  from  Pennsylvania  to  this 
conference.  He  there  proposed  a  federal  league,  to  be  author- 
ized by  an  act  of  Parliament,  with  a  president  appointed  by 
the  king,  a  grand  council  of  members  chosen  by  the  provincial 
assemblies  to  the  number  of  not  less  than  two  nor  more  than 
seven  from  each  colony;  the  executive  power  to  be  lodged  in 
the  president  and  the  legislative  in  the  council  and  president. 
This  government  was  to  have  power  to  declare  war,  make 
peace,  conclude  treaties  with  the  Indians,  regulate  trade  with 
them,  purchase  their  lands,  raise  troops,  arm  vessels,  provide 


UNITED  STATES  815 

for  the  general  safety  and  impose  taxes  for  these  purposes. 
The  laws  enacted  were  to  be  sent  to  England  for  the  approval 
of  the  king,  who  might  disallow  them  within  three  years. 
Naval  and  military  officers  were  to  be  nominated  by  the 
president  and  approved  by  the  council,  and  civil  officers  were 
to  be  nominated  by  the  council  and  approved  by  the  president. 
This  plan  met  with  opposition  from  both  sides.  The  colonists 
thought  it  conferred  too.  much  power  on  the  king,  the  British 
government  that  it  gave  the  representatives  of  the  people  too 
much  power.  The  general  idea  was  not  novel,  it  was  merely 
an  extension  of  the  system  then  prevailing  in  most  of  the 
colonies  to  a  larger  organization,  including  them  all,  with 
powers  limited  to  matters  of  general  concern.  The  delegates 
to  the  convention  were  unanimous  in  the  opinion  that  union 
of  the  colonies  was  essential  to  their  safety,  but  were  unable 
to  agree  on  any  plan  to  effect  it.  Franklin's  plan  was  about 
midway  between  the  extremists  but  satisfactory  to  neither 
side.  Though  the  formal  declaration  of  war  was  not  pub- 
lished in  England  till  May  17,  1756,  fighting  had  been  going 
on  in  America  for  nearly  two  years,  and  Braddock  had  sus- 
tained his  disgraceful  defeat  the  preceding  year.  In  the 
spring  of  1756  the  governors  of  the  colonies  met  at  New 
York  and  agreed  on  a  general  plan  of  military  operations. 
The  British  army  regulations,  which  gave  precedence  to  offi- 
cers holding  British  commissions  over  those  issued  by  the 
colonies,  were  of  course  distasteful  to  the  Americans,  who 
naturally  contrasted  the  prudence  of  Washington  with  the 
folly  of  Braddock.  In  this  war  the  colonies  made  a  very  con- 
siderable show  of  military  force.  In  the  expedition  against 
Crown  Point  in  1755  between  5,000  and  6,000  men  were  fur- 
nished by  New  England  and  New  York.  In  1757  more  than 
6,000  American  troops  were  gathered  at  New  York  under 
the  incompetent  Lord  Landoun.  After  Landoun's  recall  his 
successor  Abercrombie  gathered  an  army  of  50,000,  of  whom 
28,000  were  provincials.  Massachusetts  alone  raised  7,000 
and  Connecticut  5,000.  America  became  an  important  field 
for  the  struggle  between  the  two  nations  and,  while  the  pro- 
vincials furnished  many  men,  large  numbers  of  regulars  were 


8i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

brought  over  from  England,  and  the  command  of  all  the 
principal  armies  was  in  the  hands  of  British  officers.  The 
results  of  this  war  were  important  to  the  colonists  in  many 
ways.  Canada,  all  the  northern  portion  of  the  continent  and 
also  the  Ohio  valley,  Florida  and  all  the  territory  east  of  the 
Mississippi,  except  Louisiana,  became  British  territory.  The 
British  government  had  become  more  fully  aware  of  the  value 
of  the  land  and  of  the  productive  capacity  of  the  colonies. 
Their  cupidity  was  aroused  and  directed  toward  gaining 
wealth  through  exclusive  trade  privileges  and  taxation  of  the 
colonies.  The  right  of  the  British  Parliament  to  regulate  the 
foreign  trade  of  the  colonies  was  not  seriously  questioned  by 
the  colonists,  but  its  exercise,  especially  with  respect  to  the 
trade  with  the  West  Indies,  was  regarded  as  a  grievous  injury. 
The  natural  advantages  of  exchanges  of  the  products  of  New 
England  for  those  of  the  southern  islands  were  so  great  that 
the  trade  was  very  profitable. 

On  the  question  of  the  right  of  Parliament  to  levy  taxes 
on  the  colonies  a  more  decided  stand  was  taken.  It  was 
claimed  by  the  Americans,  as  a  settled  principle  of  English 
constitutional  law,  that  no  tax  could  be  imposed  on  British 
subjects,  except  with  the  assent  of  representatives  chosen  by 
themselves,  and  that  they  were  guaranteed  the  rights  of  Eng- 
lishmen by  their  charters.  As  none  of  the  colonies  had  rep- 
resentation in  the  British  Parliament,  it  was  denied  that  it  had 
any  right  to  grant  their  money  to  the  king.  The  position' 
taken  by  Franklin  and  most  of  the  American  leaders  was,  that 
the  king  should  himself,  through  his  ministers,  call  on  the 
colonial  assemblies  for  contributions  to  his  treasury,  and  that 
these  assemblies,  as  representatives  of  the  American  people, 
would  then  grant  such  revenues  as  were  proper.  The  expense 
of  the  French  and  Indian  War  had  added  about  £86,000,000 
to  the  national  debt  of  Great  Britain,  a  sum  exceeding  the 
whole  prior  debt.  English  statesmen  and  taxpayers  were 
eager  to  shift  a  part  of  the  burden  of  this  debt  to  the 
shoulders  of  the  Americans.  On  the  other  side,  the  Ameri- 
cans had  endured  the  horrors  of  warfare  for  British  domin- 
ion, and  insisted  on  their  right  to  determine  what  they  should 
pay. 


UNITED  STATES  817 

From  the  time  of  Cromwell  there  was  a  marked  difference 
in  the  development  of  ideas  on  the  two  sides  of  the  Atlantic. 
In  England  there  had  been  a  strong  reaction,  not  only  against 
the  religious  sentiments  of  his  time,  but  also  against  the  liberal 
political  ideas  then  prevailing.  The  house  of  Hanover  labored 
to  strengthen  the  royal  prerogative,  and  popular  rights  in 
England  meant  nothing  more  than  the  rights  of  the  wealthy 
and  titled  few.  The  toiling  masses  were  not  consulted  in 
affairs  of  government.  In  America,  the  land  held  by  resident 
owners  was  mostly  in  comparatively  small  tracts,  its  value 
depending  almost  wholly  on  the  labors  of  the  owners  with 
some  few  slaves  in  places.  There  was  no  such  system  of 
tenantry  as  existed  on  the  great  manors  of  England.  The 
democratic  spirit  had  steadily  grown,  not  as  a  result  of  po- 
litical agitation,  but  of  the  modes  of  life,  and  the  habits  of 
thought  naturally  resulting  from  substantial  equality  of  con- 
dition and  daily  necessity  for  independent  action  and  self- 
reliance.  For  a  century  and  a  half  the  people  had  been 
accustomed  to  give  heed  only  to  regulations  of  their  own 
making,  and  at  times  to  refuse  obedience  to  governors  sent 
over  from  England,  who  sought  to  exercise  arbitrary  power. 
Under  these  different  conditions  a  British  Parliament  was  in 
no  position  to  legislate  intelligently  for  the  colonies.  It  lacked 
the  first  and  all  important  qualification,  knowledge  of  the 
people,  their  character  and  surroundings.  Nothing  could 
have  been  more  unwise  than  the  stamp  act  of  1765,  the  lead- 
ing provisions  of  which  are  given  in  the  preceding  chapter. 
The  taxes  it  imposed  were  so  noticeable,  challenging  the 
attention  of  the  taxpayer  to  the  fact  of  the  imposition 
as  well  as  the  amount,  whenever  a  stamp  was  required.  It 
did  not  require  actual  payments  under  it  to  disclose  its  odious 
character  to  the  colonists.  They  simply  would  not  submit  to 
it.  Th^ir  protests  and  resistance  were  so  general  and  so  vigor- 
ous as  to  occasion  its  speedy  repeal  without  the  realization  of 
any  revenue  from  it.  The  inexcusable  blunder  had  been  made 
of  challenging  the  attention  of  the  people  of  the  colonies  to 
the  principle  involved,  taxation  without  representation. 
Parliament  still  insisted  on  its  sovereign  power,  and  by  the 


&i8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

declaratory  act  and  the  duties  levied  on  tea  and  a  few  other 
commodities  asserted  its  claims.  The  colonists  would  prob- 
ably have  submitted  under  protest  to  the  collection  of  these 
duties  had  it  not  been  for  the  unfortunate  quartering  of  troops 
in  Boston  and  the  foolish  act  closing  the  port  of  Boston.  The 
British  ministry,  still  ignorant  of  American  character,  looked 
to  military  force  to  obtain  obedience,  and  also  sought,  by  in- 
creasing the  salaries  of  the  judges  of  Massachusetts  and  mak- 
ing them  independent  of  the  legislative  assembly,  to  have  an 
instrument  they  could  rely  on.  These  things  tended  to  exas- 
perate, rather  than  to  overawe,  the  people. 

Looking  back  at  the  issues  raised  between  the  British  Min- 
istry and  the  colonists,  it  must  be  admitted  that  from  the  Eng- 
lish standpoint,  their  measures  were  mild  for  that  age,  that 
the  home  people  bore  far  heavier  burdens  of  taxation  and 
were  more  oppressed  by  monopolies  and  trade  restrictions 
than  the  Americans.  The  trouble  was  that  there  existed  a 
wide  difference  between  the  states  of  public  feeling  in  the 
two  countries.  A  measure  that  would  have  fallen  like  a  spark 
in  wet  straw  in  England  was  like  a  fire  brand  in  dry  prairie 
grass  in  America.  It  kindled  instantly  a  flame  which  spread 
over  the  whole  country.  Though  the  colonies  had  some  just 
grounds  of  complaint,  they  were  not  grievously  oppressed. 
They  enjoyed  far  greater  advantages  on  the  whole,  with  much 
lighter  burdens,  than  the  common  people  of  England.  The 
system  of  town  meetings  in  New  England  was  made  use  of 
to  arouse  the  people  and  disseminate  the  views  of  the  leading 
spirits  on  the  public  question  involved.  The  various  colonial 
assemblies  passed  resolutions  on  the  subject.  The  discussion 
of  the  abstract  question  as  to  the  right  of  Parliament  to  tax 
the  colonies  began  in  1764  by  a  resolution  of  Parliament 
asserting  the  right.  This  was  followed  by  a  denial  of  it  by 
the  General  Court  of  Massachusetts.  After  the  passage  of  the 
stamp  act,  the  House  of  Burgesses  of  Virginia  also  took  its 
stand  against  the  right,  and  other  legislatures  quickly  passed 
similar  resolutions.  On  Oct.  7,  1765,  the  first  real  American 
Congress  met  in  New  York.  Nine  colonies  namely,  Massa- 
chusetts, Rhode  Island,  Connecticut,  New  York,  New  Jersey,. 


UNITED  STATES  819 

Pennsylvania,  Delaware,  Maine  and  South  Carolina  were 
represented  by  delegates  numbering  twenty-eight  in  all.  This 
congress  passed  resolutions  of  loyalty,  claiming  that  one  of 
the  rights  of  Englishmen,  secured  to  all  the  colonies  by  their 
charters,  was  the  right  to  tax  themselves,  which  could  only 
be  done  by  their  own  legislative  bodies.  An  address  to  the 
King,  a  memorial  to  the  House  of  Lords  and  a  petition  to  the 
House  of  Commons,  were  prepared  and  forwarded.  Vir- 
ginia, North  Carolina  and  Georgia  were  prevented  by  their 
governors  from  sending  delegates  to  this  congress,  but  they 
forwarded  petitions  to  England  similar  in  import  to  the  reso- 
lutions of  the  congress.  A  pecuHar  mode  of  resistance  to 
British  measures  was  that  adopted  by  the  merchants  of  Bos- 
ton, New  York  and  Connecticut,  who  agreed  not  to  import 
or  purchase  any  merchandise, — a  few  enumerated  articles  ex- 
cepted,— from  Great  Britain  for  a  year.  Two  regiments  of 
soldiers  having  been  quartered  in  Boston,  some  of  them  on 
March  5,  1770,  exasperated  by  gibes  and  pelted  with  stones 
by  a  mob,  fired  on  them,  killing  three  and  wounding  others, 
one  of  whom  afterward  died.  This  was  called  the  Boston 
Massacre  and  tended  to  increase  the  irritation  caused  by  the 
quartering  of  troops  there.  Throughout  the  early  years  New 
England  had  been  allowed  greater  freedom  in  the  manage- 
ment of  its  domestic  affairs  than  the  more  southern  colonies. 
It  was  now  made  the  center  for  repressive  measures  and  the 
exercise  of  arbitrary  power.  The  result  could  have  been  fore- 
told by  anyone  familiar  with  the  character  of  the  New  Eng- 
landers  of  that  day,  but  ignorance  of  it  led  the  British  Ministry 
to  commit  blunder  after  blunder.  The  sentiment  of  loyalty 
to  the  British  government  and  kinship  to  the  English  people 
was  still  strong  throughout  all  the  colonies.  The  people 
could  easily  have  been  led  to  tax  themselves,  and  probably  to 
have  contributed  their  full  share  to  the  revenues  of  the  crown, 
but  they  could  not  endure  arbitrary  power.  Trade  restrictions 
and  duties  led  to  smuggling,  and  this  in  turn  to  severe  mea- 
sures to  repress  it.  In  June  1772  the  armed  schooner  Gaspre, 
employed  in  the  revenue  service,  having  run  aground  in  shoal 
water  near  Providence,  Rhode  Island,  was  boarded  by  armed 


820  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

men  in  whale  boats  and  burned.  The  East  India  Company, 
encouraged  by  the  allowance  of  a  drawback  of  the  English 
duty  of  a  shilling  a  pound  on  tea  to  be  exported  to  America, 
where  the  duty  was  only  threepence  and  believing  they  could 
realize  great  profits  from  it  in  the  colonies,  sent  several  ship- 
loads to  New  York,  Boston,  Philadelphia,  and  Charleston. 
But  the  Americans  had  decided  not  to  drink  tea.  At  New 
York  and  Philadelphia  the  ships  were  sent  back  to  London. 
At  Charleston  the  people  unloaded  it  and  stored  it  in  damp 
cellars,  where  it  soon  spoiled.  At  Boston,  having  vainly  tried 
to  send  back  the  three  shiploads  which  had  arrived  there,  a 
party  of  men  disguised  as  Indians  boarded  the  ships  and 
emptied  the  tea  into  the  bay.  As  soon  as  this  was  known  in 
England,  Parliament  passed  a  bill  ordering  the  port  of  Bos- 
ton closed,  and  followed  it  with  bills  prohibiting  town  meet- 
ings, except  with  the  consent  of  the  governor,  and  requiring 
persons  charged  with  offenses  against  the  state  to  be  sent  to 
England  or  another  colony  for  trial.  These  were  direct  blows 
at  the  most  dearly  cherished  rights  of  the  people,  which  had 
been  guaranteed  them  by  their  charters  and  enjoyed  ever 
since  the  earliest  settlements.  The  town  meeting  was  like  the 
tribal  meeting  of  the  ancient  Saxons.  Through  it  the  public 
will  found  expression.  It  could  not  be  taken  away,  except  by 
a  force  superior  at  every  point  to  the  people  of  the  colonies, 
yet  an  ignorant,  foolhardy  ministry  sought,  through  a  vote  of 
Parliament,  to  revolutionize  New  England's  political  life. 
The  first  thing  done  at  Boston,  after  the  receipt  of  news  of  the 
passage  of  these  acts,  was  to  hold  a  town  meeting.  This  was 
what  had  always  been  done  when  any  matter,  of  great  public 
concern  required  attention.  Resolutions  were  passed  calling 
for  concert  of  action  among  the  colonies  and  a  suspension 
of  trade  with  Great  Britain  till  the  wrongs  were  righted. 
These  extreme  measures  on  the  part  of  Great  Britain  were 
generally  comprehended  throughout  the  colonies,  and  the 
cause  of  Boston  and  Massachusetts  was  looked  upon  as  one 
common  to  all  the  cities  and  colonies.  The  Virginia  Assembly 
resolved  to  observe  the  first  day  of  the  operation  of  the  port 
bill  as  a  day  of  fasting,  and  proposed  a  general  congress  to 
deliberate  and  provide  for  the  common  welfare. 


UNITED  STATES  821 

On  September  4,  1774,  delegates  from  eleven  colonies  met 
at  Philadelphia  and  on  the  next  day  chose  Peyton  Randolph 
as  their  president.  A  declaration  of  rights  was  agreed  upon 
and  the  repeal  of  the  acts  of  Parliament  infringing  them  was 
demanded.  To  enforce  their  demands  an  agreement  to  sus- 
pend trade  relations  with  England  was  entered  into.  Ad- 
dresses to  the  King,  to  the  people  of  the  colonies  and  of  Great 
Britain  were  prepared.  The  effects  of  the  liberties  which  the 
colonists  had  enjoyed,  and  of  the  attention  paid  by  them  to 
education,  were  now  made  manifest.  Boldness  of  spirit  in 
asserting  their  rights  was  the  offspring  of  habits  of  self- 
reliance  and  independence,  clearness  of  statement  of  their 
rights  and  demands,  was  due  to  a  thorough  knowledge  of  the 
growth  of  liberal  principles  in  England  and  of  the  free  insti- 
tutions of  ancient  Greece  and  Rome.  Lord  Chatham  charac- 
terized the  addresses  as  masterpieces  of  their  kind.  After  an 
eight  weeks'  session  Congress  dissolved,  with  the  recommen- 
dation that  another  be  held  on  the  tenth  of  May  following  at 
Philadelphia.  The  ministry  looked  to  the  army  to  enforce 
their  policy,  and  General  Gage  and  two  regiments  of  infantry 
and  some  artillery  were  landed  at  Boston.  The  colonists 
began  to  make  preparations  for  a  collision,  and  the  Massa- 
chusetts committee  of  safety  gathered  some  supplies  at  Con- 
cord. Gage  sent  out  a  force  to  seize  them,  and  the  collision 
with  the  minute  men  of  Lexington,  which  opened  the  war  of 
the  Revolution,  took  place  April  19,  1775.  Then  followed  on 
May  10  the  capture  of  Ticonderoga  and  on  June  17 
the  Battle  of  Bunker  Hill.  On  May  10,  1775,  the  time 
fixed  by  the  first  congress,  delegates  from  twelve  colonies  met 
at  Philadelphia.  They  forthwith  recognized  the  existence  of 
a  state  of  hostility  between  England  and  the  colonies,  and 
determined  to  provide  for  their  defense,  but,  still  seeking 
peace,  they  resolved  that  they  wished  for  peace  and  that  "to 
the  promotion  of  this  most  desirable  reconciliation  an  humble 
and  dutiful  petition  be  presented  to  his  majesty."  The  peti- 
tion and  a  second  address  to  the  people  of  Great  Britain,  as 
well  as  others  to  the  people  of  Canada  and  Jamaica,  were 
prepared.    Congress  voted  to  equip  20,000  men,  chose  George 


822  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Washington  commander-in-chief  of  the  army  of  the  United 
Colonies,  authorized  an  issue  of  bills  of  credit  to  the  amount 
of  $3,000,000  and  pledged  the  twelve  United  Colonies  to  their 
redemption.  On  July  6  the  Continental  Congress  issued  a 
manifesto,  justifying  their  resort  to  arms,  yet  disclaiming  any 
intention  to  establish  their  independence  of  the  Crown.  In 
July  a  convention  in  Georgia  resolved  to  support  the  common 
cause  and  sent  delegates  to  the  Congress.  In  December  Con- 
gress resolved  to  fit  out  thirteen  ships  of  war.  March  17, 
1776,  as  a  result  of  the  siege  by  the  American  army  under 
Washington,  the  British  troops  amounting  to  7,000  men 
evacuated  Boston,  and  a  fleet  took  them  to  Halifax.  The 
military  operations  in  1775  were  generally  favorable  to  the 
colonists,  mainly  because  the  British  government  had  not  yet 
organized  and  sent  over  its  armies.  Aug.  25,  1775,  the  king 
issued  a  proclamation  against  the  rebellion  and  sedition  in 
America,  and  in  October  Parliament  voted  25,000  men  to 
maintain  his  authority.  Arrangements  were  soon  after  made 
to  hire  17,000  Hessian  auxiliaries.  Thus  war  grew  into 
greater  proportions,  and  both  sides  looked  to  force  rather 
than  reason  to  maintain  their  positions.  When  the  news 
reached  America  that  so  large  a  force  was  about  to  be  sent 
against  them,  and  that  they  had  been  declared  out  of  the  royal 
protection,  the  sentiment  in  favor  of  independence  grew 
rapidly.  It  was  perceived  that  open  organized  resistance  of 
British  authority  was  inconsistent  with  a  pretense  of  loyalty 
to  the  king.  Writers  and  speakers  began  to  talk  vigorously 
in  favor  of  throwing  off  all  allegiance  and  on  June  7  Richard 
Henry  Lee  of  Virginia  moved  in  Congress  "that  the  United 
Colonies  are  and  ought  to  be,  free  and  independent  States, 
and  that  their  political  connection  with  Great  Britain  is,  and 
ought  to  be  dissolved."  The  motion  was  earnestly  advocated 
and  vigorously  opposed.  It  passed  by  one  majority.  Further 
consideration  of  the  subject  was  postponed  until  July  i,  and 
a  committee,  consisting  of  Thomas  Jefferson,  John  Adams, 
Benjamin  Franklin,  Roger  Sherman  and  Robert  R.  Living- 
ston, was  appointed  to  prepare  a  declaration.  These  were 
remarkably  strong  men,  who  thoroughly  understood  the  feel- 


UNITED  STATES  823 

ing's  of  the  people  for  whom  they  were  to  speak.  The  decla- 
ration they  prepared,  and  which  was  finally  adopted  and 
proclaimed  on  July  4,  1776,  still  blazes  forth  as  the  beacon 
light  by  which  Americans  are  guided  in  their  efforts  to  secure 
liberty  to  all.  The  fundamental  principles  on  which  they 
based  their  action  were  not  to  be  found  in  any  code  of  Europe, 
nor  have  they  yet  been  given  full  operation  in  America. 

The  substance  is  contained  in  the  second  paragraph  as 
follows : 

"We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights,  that  among  these  are  life,  liberty 
and  the  pursuit  of  happiness.  That  to  secure  these  rights 
governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed;  that  whenever  any 
form  of  government  becomes  destructive  of  these  ends,  it  is 
the  right  of  the  people  to  alter  or  to  abolish  it,  and  to  institute 
a  new  government,  laying  its  foundations  on  such  principles, 
and  organizing  its  powers  in  such  form,  as  to  them  shall  seem 
most  likely  to  effect  their  safety  and  happiness."  The  decla- 
ration then  proceeds  with  an  arraignment  of  the  King  of 
England  for  a  long  list  of  tyrannical  acts  with  which  he  was 
charged,  and  a  justification  of  the  course  pursued  by  the 
colonists  in  their  efforts  to  obtain  redress  of  their  grievances. 

The  breach  between  the  British  government  and  the  colonies 
had  now  become  irreparable  and  the  old,  cruel,  and  unneces- 
sary method  of  settling  questions  of  right  by  the  horrors  and 
barbarities  of  war  was  resorted  to  on  both  sides.  British 
statesmen  in  all  times  past  had  relied  on  force  to  compel  sub- 
mission to  their  authority.  American  statesmen  knew  no 
other  course  but  to  resist  force  with  force.  Centuries  of  edu- 
cation to  forsake  Christ  and  follow  the  ancient  war  gods 
caused  the  people  to  follow  their  leaders  into  the  bloody  strife. 
That  the  misunderstanding  started  from  a  question  which 
ought  to  have  been  settled  by  reason  in  a  friendly  conference 
is  clear;  yet  so  poor,  clumsy,  obstinate  and  morally  defective 
were,  and  usually  have  been,  the  statesmen  of  the  time,  that 
untold  misery  must  needs  supply  the  place  of  the  virtue  and 


824  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

intelligence  which  belong  in  the  councils  of  a  great  nation. 
The  frightful  responsibility  of  setting  the  elder  branch  of  the 
English  family  in  arms  against  the  younger  one  was  assumed 
with  that  alacrity  with  which  evil  passions  so  frequently  are 
allowed  to  lead  to  destruction. 

Having  utterly  thrown  off  all  the  authority  of  the  British 
government,  the  task  of  constructing  one  of  their  own  was 
presented  to  the  colonists.  They  were  not  hampered  by  any 
claims  of  hereditary  authority  on  the  part  of  Americans. 
British  titles  had  remained  on  the  east  side  of  the  ocean,  and 
equality  of  political  rights  was  not  a  discovery  of  some  ad- 
vanced philosopher,  but  a  patent  fact  long  recognized  in 
America.  Equality  did  not  need  to  be  established,  nor  was 
there  any  occasion  for  educating  the  people  to  it.  Whatever 
sentiment  of  loyalty  to  the  king  or  of  respect  for.  titled  no- 
bility existed — and  there  was  some — was  for  a  king  and 
nobility  far  away  across  the  ocean,  not  for  dwellers  in 
America. 

The  organization  of  new  governments  necessarily  started 
from  the  people  in  their  primary  capacity,  and  was  effected  in 
each  colony  through  the  medium  of  a  convention  or  assembly 
of  delegates,  selected  by  the  people  in  their  town  meetings  in 
New  England  and  New  York  and  their  counties  in  the  south. 
The  transition  from  the  colonial  system  to  one  of  independ- 
ent states  was  effected  easily  and  naturally.  The  system  which 
had  prevailed  needed  only  slight  modification  to  provide  for 
such  parts  of  the  governmental  force  as  had  been  theretofore 
appointed  by  the  Crown.  All  the  colonies  had  elective  legisla- 
tive bodies,  and  Connecticut  and  Rhode  Island  chose  their 
own  Governors  and  judicial  officers.  The  people  were  ac- 
customed to  look  to  their  representatives  for  legislation  on 
matters  of  interest  to  the  colony,  and  systems  of  election  were 
already  in  use,  by  which  the  people  were  accustomed  to  name 
them.  The  town  meeting  system,  which  prevailed  in  New 
England,  furnished  a  most  convenient  means  of  expressing 
public  sentiment,  and  one  which  the  royal  governors  found  it 
utterly  impossible  to  seriously  interfere  with.  The  people  in 
the   southern  colonies   also   found   no   difficulty  in   choosing 


UNITED  STATES  825 

representatives  and  convening  them  for  business.  Constitu- 
tions providing  for  state  governments  were  adopted  during 
1776  in  all  but  four  of  the  colonies;  the  conventions  in  Georgia 
and  New  York  met  in  1776,  but  did  not  complete  their  labors 
till  February  and  April  respectively  of  the  following  year. 
In  Massachusetts  a  constitution  was  framed  by  the  General 
Court  in  1778  which  was  rejected  by  the  people  and  it  was  not 
till  1780  that  one  was  adopted.  Connecticut,  being  satisfied 
with  its  existing  system  under  its  charter,  merely  affirmed  its 
independence  by  an  act  of  its  General  Court,  adopted  the 
form  of  civil  government  contained  in  the  charter  of  Charles 
II  and  promulgated  a  brief  bill  of  rights.  A  new  constitution 
was  not  framed  till  18 18.  Rhode  Island  also  was  so  well 
satisfied  with  its  charter  government  that  it  framed  no  con- 
stitution till  1842.  In  most  of  the  colonies  the  governors  had 
been  named  by  the  king,  but  the  charters  of  Connecticut  and 
Rhode  Island  provided  that  they  should  be  elected  by  the 
General  Assembly.  It  was  therefore  quite  natural  that,  on 
cutting  off  the  appointing  power  of  the  king,  it  should  be 
transferred  to  the  representative  body.  Under  the  first  con- 
stitutions the  chief  executive  officer,  styled  Governor  in  some 
states  and  President  in  others,  was  elected  by  direct  vote  of 
the  people  in  Massachusetts  and  New  York  only.  His  term 
in  New  York  was  three  years.  In  New  Hampshire  a  tempo- 
rary arrangement  was  made  for  the  choice  of  a  council  of 
twelve,  by  whom  a  president  was  named.  The  constitution 
then  adopted  was  not  intended  to  be  complete  or  permanent. 
In  1 784  a  new  one  was  framed  under  which  the  President  was 
chosen  by  the  people.  In  all  the  other  colonies  the  Governor 
was  chosen  by  the  Legislative  body  and  held  office  only  for 
one  year.  The  preponderating  force  in  all  the  states  was  the 
great  representative  body,  which  derived  its  authority  and 
was  named  directly  by  the  people.  The  idea  prevailed  every- 
where that  delegates  to  the  legislature  should  come  out  of  the 
body  of  the  people  and  return  to  them  at  short  intervals,  so 
as  to  always  be  in  a  position  to  truly  represent  the  prevailing 
sentiment  of  those  for  whom  they  acted.  The  members  of 
the  most  numerous  branch  of  the  legislature  were  chosen  for 


826  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

one  year  only  in  every  state  except  South  Carolina,  where  the 
term  was  two  years.  Most  of  the  constitutions  provided  also 
for  a  senate  or  legislative  council,  to  be  elected  at  the  same 
time  as  the  representatives,  but  in  New  York  and  Virginia  the 
senators  were  elected  for  four  years  and  in  Maryland  for  five 
years.  In  most  of  the  states  an  executive  council  was  also 
provided  for,  which  was  selected  by  the  assembly.  While 
some  of  the  more  carefully  drawn  constitutions  provide  in 
express  terms  for  the  separation  and  independence  of  the 
executive,  legislative  and  judicial  functions,  the  provisions  of 
some  of  them  with  reference  to  the  choice  and  powers  of  the 
judiciary  are  not  very  explicit.  In  no  case  was  their  election 
by  the  people  required.  The  tenure  of  office  of  the  judges  of 
the  high  courts  was  during  good  behavior  in  all  the  states 
which  framed  new  constitutions  at  that  time,  except  New 
Jersey  and  Pennsylvania,  where  the  term  was  seven  years. 
Nearly  all  the  constitutions  guarantee  full  religious  liberty 
without  qualification,  but  that  of  Massachusetts  allows  the 
Legislature  to  provide  for  public  worship  and  qualifies  the 
freedom  of  religious  observances.  The  distaste  in  some 
states  for  clerical  interference  in  affairs  of  state  was  so  great, 
that  the  constitutions  of  Delaware,  Georgia,  New  Jersey, 
North  Carolina  and  Virginia,  expressly  disqualify  all  min- 
isters of  the  gospel  from  sitting  in  the  Legislature,  and  some 
of  them  disqualify  them  from  holding  any  office  whatever. 
All  the  states  provided  for  the  choice  of  delegates  to  the  Con- 
gress of  the  United  States  to  be  chosen  annually  by  the  Legis- 
lature. The  constitution  of  Massachusetts  is  the  most  full 
and  explicit  of  all  and  goes  much  more  into  details  than  the 
others.  The  constitutions  of  Maryland,  Massachusetts, 
North  Carolina  and  Pennsylvania  begin  with  what  are  termed 
Declarations  of  Rights  and  that  of  Virginia  with  a  Bill  of 
Rights.  Perhaps  the  best  of  these  for  brevity,  clearness  and 
strength  is  that  of  North  Carolina,  though  that  of  Virginia 
is  also  an  admirable  model.  All  these  constitutions  crystalize 
the  impulse  and  spirit  which  moved  the  colonists  to  revolt. 
The  prime  purpose  of  all  of  them  was  to  protect  the  people 
against  arbitrary  power.     Liberty  and  public  order  were  the 


UNITED  STATES  827 

two  great  blessings  they  were  designed  to  secure.  With  the 
amendments,  which  subsequent  experience  has  dictated,  they 
have  been  found  to  serve  these  purposes  admirably.  The  one 
fatal  inconsistency  of  such  lofty  statements  of  the  inalienable 
rights  of  men  with  the  actual  holding  of  slaves  was  felt  by 
the  leading  statesmen  of  the  time,  but  could  not  then  be 
avoided.  Little  mention  of  African  slavery  is  to  be  found 
in  these  constitutions,  most  of  which  are  altogether  silent  on 
the  subject.  Delaware  provided  that  no  slaves  should  be 
thereafter  brought  in  from  Africa,  nor  from  other  colonies 
for  sale.  While  the  work  of  forming  state  government  went 
on  so  expeditiously,  that  of  providing  a  system  for  conducting 
the  general  affairs  of  the  United  States  was  found  much  more 
difficult.  No  general  government  had  ever  existed,  except  the 
British  monarchy,  which  was  utterly  thrown  off.  No  model 
existed  for,  nor  were  the  people  educated  or  accustomed  to 
respect,  any  central  authority  speaking  for  all.  Though  a 
congress  had  been  formed  by  the  simple  process  of  sending 
delegates  from  each  colony,  the  extent  of  its  powers  and  the 
manner  of  exercising  them  was  wholly  undefined,  and  the 
ratification  of  the  state  governments  was  requisite  before  the 
resolutions  of  Congress  could  be  given  effect. 

On  June  11,  1776,  Congress  resolved  that  a  committee 
should  be  appointed  to  prepare  a  form  of  confederation,  and 
on  the  next  day  the  committee  was  made  up.  It  was  not  till 
Nov,  15,  1777,  that  articles  of  confederation  were  completed, 
finally  agreed  to  in  Congress  and  proposed  to  the  states.  They 
were  formally  ratified  and  signed  on  behalf  of  eight  states  on 
July  9,  1778,  but  did  not  receive  the  assent  of  Maryland  till 
March  i,  1781.  These  articles  provided  for  the  retention  of 
their  sovereignty  by  the  states,  but  united  them  in  a  league 
for  mutual  defense.  They  gave  to  the  citizens  of  each  state 
all  the  privileges  of  citizens  of  the  other  states,  and  provided 
for  a  Congress,  made  up  of  delegates  from  the  states,  chosen 
for  one  year  subject  to  recall.  Each  state  was  given  only 
one  vote  in  Congress,  but  might  be  represented  by  not  less 
than  two  nor  more  than  seven  delegates.  The  states  were 
prohibited     from    making    treaties,     sending    embassies    or 


828  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

forming  alliances  with  each  other  without  the  consent  of 
Congress.  The  treasury  of  the  Confederated  States  was  de- 
pendent on  contributions  from  the  states,  to  be  raised  under 
the  direction  of  the  Legislatures,  as  were  the  quotas  of  men 
for  the  army  and  navy.  Congress  was  given  exclusive  power 
to  malce  peace  or  war,  send  ambassadors,  make  treaties,  de- 
cide controversies  between  the  states,  regulate  the  coinage 
of  money  and  to  conduct  the  general  affairs  of  the  states.  A 
committee  of  the  states  with  a  president  was  vested  with 
executive  power  during  the  recess  of  Congress. 

The  weakness  of  this  plan  of  organization  lay  in  its  lack 
of  executive  force.  The  Congress  could  do  little  more  than 
resolve  and  give  directions  for  the  use  of  the  troops  and  the 
disbursement  of  the  funds  which  the  state  legislatures  might 
provide.  It  had  no  power  to  act  directly  on  the  citizens  of 
the  states.  It  could  neither  enforce  military  service  nor  col- 
lect taxes.  These  defects  became  painfully  apparent  as  the 
war  progressed  and  the  necessities  of  unity  and  promptness 
became  more  and  more  apparent.  Not  only  was  there  great 
delay  in  obtaining  supplies  through  the  state  legislatures,  but 
there  was  no  means  of  compelling  action  on  their  part  after 
Congress  had  made  its  requisition.  The  devotion  of  the  peo- 
ple to  the  cause  of  liberty,  and  the  remarkable  patience, 
steadiness  of  purpose  and  ability  to  inspire  confidence,  ex- 
hibited by  Washington,  had  to  make  good  the  weakness  of 
Congressional  authority.  Though  in  military  organization 
and  equipment  the  Americans  were  far  inferior  to  the  British, 
in  spirit  and  enterprise  they  were  quite  superior.  The  British 
could  take  the  seaport  cities  with  comparative  ease,  but 
Burgoyne  fell  into  difficulties  and  was  forced  to  surrender  his 
army  in  an  attempt  to  force  his  way  through  New  York.  The 
spirit  and  energy  with  which  the  Americans  surrounded  him 
with  a  superior  force  were  characteristic  of  a  free  people. 
Similar  conditions  proved  the  ruin  of  Cornwallis  and  his 
army.  With  the  aid  of  France  and  Spain  the  independence 
of  the  colonies  was  achieved,  and  a  preliminary  treaty  of 
peace  was  signed  at  Paris  on  Nov.  30,  1782.  The  final 
definitive  treaty  was  not  completed  and  signed  till  Septem- 
ber 3,  1783. 


UNITED  STATES  829 

Though  many  inconveniences  had  attended  the  loose  or- 
ganization under  the  articles  of  confederation,  while  the  war 
lasted  the  authority  of  Congress  was  generally  respected,  and 
it  gained  a  character  with  the  people,  who  generally  under- 
stood that  success  without  united  action  would  have  been  im- 
possible. When  the  strain  of  war  was  removed  the  inadequacj^ 
of  the  powers  of  Congress  to  provide  for  the  general  welfare 
became  more  apparent  and,  the  common  danger  being  past, 
conflicting  interests  of  the  different  states  were  regarded  as 
of  more  importance,  and  the  effect  of  commercial  treaties, 
which  Congress  had  no  power  to  make  binding  on  the  state, 
more  productive  of  discord.  A  great  debt  had  been  incurred, 
for  the  payment  of  which  Congress  had  no  adequate  powers 
of  taxation.  The  army,  which  had  fought  so  successfully, 
was  to  be  disbanded  with  large  arrears  of  pay  due  the  soldiers. 
The  recommendations  by  Congress  of  treaties  negotiated  with 
foreign  powers,  and  for  the  raising  of  funds  to  pay  public 
obligations,  were  no  longer  followed  by  the  states,  unless 
satisfactory  to  them.  The  pressure  of  evident  necessity  to 
force  compliance  was  lacking.  The  desire  for  a  more  effi- 
cient national  organization  had  been  frequently  expressed, 
and,  under  the  lead  of  Virginia,  a  convention  was  called  to 
meet  at  Annapolis  to  consider  the  subject,  but  the  attendance 
was  so  small  that  nothing  of  importance  was  done  beyond, 
issuing  an  address  urging  the  appointment  of  commissioners 
from  each  state  to  meet  in  Philadelphia  in  May  following. 
On  Feb.  21,  1787,  Congress  adopted  a  resolution  favoring 
the  convention.  In  pursuance  of  this  plan  a  convention  with 
delegates  from  seven  states,  and  later  from  all  but  Rhode 
Island,  met  at  Philadelphia  and  elected  George  Washington 
as  its  president.  This  convention  framed  a  constitution,  a 
full  copy  of  which  with  all  amendments  subsequently  adopted 
will  be  found  in  the  appendix. 

This  constitution  having  been  agreed  to  by  the  Convention, 
engrossed  and  signed  by  all  the  members  present,  except 
Gerry  of  Massachusetts  and  Mason  and  Randolph  of  Vir- 
ginia, was  transmitted  by  the  president  to  Cons^ress  with  a 
resolution  providing  the  manner  of  putting  it  in  execution 


830  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  an  explanatory  letter.  On  September  28,  1787  Congress 
directed  that  the  Constitution,  resolutions  and  letter  ''be 
transmitted  to  the  several  Legislatures  in  order  to  be  sub- 
mitted to  a  convention  of  delegates  chosen  in  each  state 
by  the  people  thereof,  in  conformity  to  the  resolves  of  the 
convention.'*  It  was  ratified  by  the  states  on  the  dates  fol- 
lowing: Delaware,  December  7,  1787;  Pennsylvania,  De- 
cember 12,  1787;  New  Jersey,  December  18,  1787;  Georgia, 
January  2,  1788;  Connecticut,  January  9,  1788;  Massachu- 
setts, February  6,  1788;  Maryland,  April  28,  1788;  South 
Carolina,  May  23,  1788;  New  Hampshire,  June  21,  1788; 
Virginia,  June  26,  1788;  New  York,  July  26,  1788;  North 
Carolina,  November  21,  1789,  and  Rhode  Island,  May  29, 
1790.     The  new  constitution  was  put  in  operation  on  March 

4,  1789  with  George  Washington  as  President  and  John 
Adams  as  Vice-President,  before  its  ratification  by  the  two 
states  last  named.  There  had  been  violent  opposition  to  it, 
mainly  on  the  ground  that  it  conferred  so  much  power  on 
the  general  government  and  was  deficient  in  its  guarantees  of 
liberty  and  of  the  rights  of  the  states.  This  feeling  was  so 
strong  and  general  that  the  first  Congress,  on  September  25, 
1789,  proposed  twelve  amendments  to  the  Legislatures  of 
the  states,  ten  of  which  were  ratified  by  the  requisite  number 
of  states  by  December  15,  1791.  The  journals  of  Congress 
do  not  show  any  ratification  by  either  Connecticut,  Georgia 
or  Massachusetts,  but  include  Vermont,  which  had  been  ad- 
mitted into  the  union,  February  19,  1791,  as  a  new  state. 
The  new  articles  adopted  are  given  in  the  appendix. 

The  next  amendment  was  proposed  by  Congress  September 

5,  1794,  declared  adopted  January  8,  1798  and  reads: 

"The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state.'' 

The  Supreme  Court  of  the  United  States  had  decided,  that 
it  had  jurisdiction  of  a  suit  to  compel  a  state  to  pay  a  debt, 
and  this  amendment  was  adopted  to  prohibit  any  further  ex- 
ercise of  such  jurisdiction.     The  next  amendment  was  pro- 


UNITED  STATES  831 

posed  in  1803,  proclaimed  as  adopted  September  25,  1804, 
and  stands  as  Article  12  of  amendments.  It  changes  the 
mode  of  electing  the  president  and  vice-president.  No  further 
amendments  were  made  for  more  than  sixty  years.  The  next 
were  the  XIII  and  XIV,  prohibiting  slavery,  and  guarantee- 
ing the  rights  of  the  liberated  negroes,  which  followed  as  a 
result  of  the  Civil  War.  The  thirteenth  was  proposed  Feb- 
ruary I,  1865,  and  declared  adopted  December  18,  1865.  The 
fourteenth  was  proposed  June  16,  1866,  and  declared  adopted 
July  21,  1868. 

The  Supreme  Court  of  the  United  States  has  held  that 
corporations  are  citizens  within  the  meaning  of  the  first  sec- 
tion of  this  amendment,  and  the  principal  effect  of  the  amend- 
ment, so  construed,  is  to  prohibit  the  state  Legislatures  from 
regulating  the  business  of  great  corporations,  a  matter  never 
discussed  or  generally  thought  of  when  the  amendment  was 
adopted.  The  XV  was  proposed  February  27,  1869,  and  de- 
clared adopted  March  30,  1870.  The  XVI  amendment  was 
proposed  by  Congress  and  ratified  by  the  requisite  number  of 
states  in  February,  191 3.  From  the  time  of  the  French  and 
Indian  War  the  political  principle  most  cherished  among  the 
people  of  the  American  states  has  been,  and  still  is,  individual 
liberty.  Resort  to  arms  for  the  maintenance  of  their  rights, 
has  been,  and  still  is,  generally  regarded  as  justifiable,  and 
the  war  spirit  is  perhaps  as  prevalent  as  in  the  European 
states.  In  1801  hostilities  commenced  with  Tripoli  and  were 
continued  till  June  1805  by  the  naval  force.  The  wars  in 
Europe  were  the  occasion  of  acts  on  the  part  of  both  England 
and  France  which  caused  great  irritation  to  those  engaged 
in  foreign  commerce.  The  search  of  American  vessels  for 
deserters  from  the  British  navy,  practised  by  the  English,  was 
especially  exasperating.  Other  high-handed  proceedings  on 
the  part  of  the  British  government  led  to  a  declaration  of  war 
on  June  19,  181 2.  It  was  expected  that  the  people  of  Canada 
would  break  away  from  Great  Britain  and  join  the  United 
States,  but  in  this  they  were  disappointed.  In  this  contest 
the  Americans  again  had  to  face  Indian  warfare  on  the  fron- 
tiers.   In  the  fighting  on  land  the  advantages  were  mainly  on 


832  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  side  of  the  British,  whose  troops  were  better  discipHned, 
but  at  sea  the  Americans  disputed  their  claim  to  rule  the  wave 
and  won  some  victories,  sustaining  also  some  defeats.  The 
contest  with  France  drew  the  main  force  of  the  British  and 
saved  the  Americans  from  the  full  brunt  of  the  war.  A 
treaty  of  peace  was  made  in  December  1814.  With  the  ex- 
ception of  the  Indian  wars,  which  took  place  on  the  frontiers 
from  time  to  time,  the  country  was  at  peace  till  1846.  Texas, 
having  gained  its  independence  from  Mexico,  was  on  March 
I,  1845,  annexed  to  the  United  States  and  admitted  into  the 
union  as  a  new  state  on  December  29,  1845.  War  with 
Mexico  followed  and  as  a  result  of  it,  by  the  treaty  of  Guad- 
alupe Hidalgo,  concluded  February  2,  1848,  the  vast  territory 
from  Texas  to  the  Pacific  was  added  to  the  possessions  of 
the  United  States.  The  Louisiana  purchase  in  1803  had 
added  the  fertile  district  of  undefined  extent  west  of  the 
Mississippi  River,  and  in  1821  Florida  was  ceded  by  Spain. 
By  a  subsequent  treaty  a  relatively  small  district  was  pur- 
chased from  Mexico,  known  as  the  Gadsden  purchase,  thus 
completing  the  present  boundaries  of  the  contiguous  territory 
of  the  United  States.  The  foreign  wars  of  the  United  States, 
except  that  with  England,  have  not  been  of  such  magnitude 
as  to  seriously  strain  the  resources  of  the  country  or  check 
its  growth  and  prosperity.  The  unfortunate  circumstance  of 
a  slave  population  in  a  part  of  a  great  country,  whose  leading 
political  dogma  was  personal  liberty,  led,  first  to  bitter  words 
and  then  to  a  civil  war  between  a  part  of  the  slaveholding 
states  and  the  regular  government,  which,  for  the  vast  num- 
bers of  men  drawn  into  the  armies,  the  bloody  battles  fought, 
and  the  determination  of  each  side  to  succeed  at  all  hazards, 
has  rarely  been  equalled.  In  the  political  campaign  of  i860 
there  was  a  breaking  up  of  old  parties,  and  a  new  party, 
whose  main  purpose  was  to  prevent  the  extension  of  slavery 
into  the  territories,  elected  its  candidates  for  president  and 
vice-president.  Leaders  in  the  slave-holding  states  saw  in 
this  a  menace  to  the  institution  of  slavery  and  induced  the 
states  to  attempt  to  withdraw  from  the  Union.  The  right 
of  a  state  to  secede  was  asserted  in  the  south  and  denied  in 


UNITED  STATES  833 

the  north.  No  peaceful  tribunal  existed  to  which  the  parties 
were  willing  to  submit  the  question,  and  the  old,  horrible, 
barbarous  tribunal  of  war  was  invoked.  During  the  struggle 
the  government  of  the  United  States  expended  far  more 
money  in  expenses  of  the  war  than  the  market  value  of  all 
the  slaves  in  the  whole  Union.  As  a  mere  matter  of  dollars, 
the  general  government  could  have  bought,  paid  for  and 
liberated  every  slave  for  far  less  money  than  was  expended 
on  the  army  and  navy.  Far  more  important  of  course  than 
the  money,  were  the  men  who  lost  their  lives,  their  limbs  or 
health  in  the  contest,  and  the  misery  and  destitution  in  the 
homes  of  the  absent  soldiers.  These  were  the  direct  and  ap- 
parent effects  of  the  mad  struggle.  The  indirect  effects, 
though  not  so  easily  discerned,  were  of  great  importance. 
There  was  a  general  lowering  of  moral  standards  throughout 
the  country.  An  impetus  was  given  to  the  building  of  great 
fortunes,  and  to  corrupt  influences  on  public  officials  from 
which  the  country  has  not  recovered.  The  object  lessons  of 
the  war,  most  patent  to  the  rising  generation,  were  lessons 
of  the  use  of  the  organized  powers  of  the  contending  parties 
for  the  taking  of  the  lives  and  the  destruction  of  the  property 
of  each  other.  This  war  could  not  have  taken  place  if  the 
people  generally  had  been  educated  to  condemn  war  as  bar- 
barous. The  histories,  then  and  still  read  by  the  people,  are 
mostly  filled  with  the  details  of  wars,  and  the  men  most  ad- 
mired and  extolled  are  the  military  leaders.  The  war  spirit  will 
be  propagated  and  break  forth  with  its  furies  and  moral  pesti- 
lence till  the  people  are  taught  peace,  and  wholesale  murder 
by  nations  is  classed  with  retail  murder  by  individuals  and 
condemned  by  the  public  conscience.  Nations  have  seldom 
suffered  more  severely  from  the  effects  of  civil  war  than  did 
the  United  States  from  1861  to  1865,  yet  perhaps  none  ever 
recovered  from  the  effects  so  rapidly.  The  question  which 
gave  rise  to  the  conflict  having  been  decided  and  the  basis  of 
the  contention  removed,  the  work  of  resuming  harmonious 
relations  was  quickly  accomplished.  The  people  of  the  se- 
ceded states  were  taken  again  into  the  Union,  which  they  had 
^-ainly  tried  to  break  awav  from,  and  accorded  all  the  rights 
and  privileges  of  those  who  had  maintained  it. 


834  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

From  the  adoption  of  the  fifteenth  amendment  till  the  rati- 
fication of  the  sixteenth  a  period  of  forty-three  years. elapsed. 

State  Constitutions 

From  thirteen,  the  number  of  the  revolting  colonies  which 
assumed  independence  and  sovereignty  in  1776,  the  Union 
has  now  grown  to  contain  forty-eight  states,  each  with  rights 
equal  to  those  enjoyed  by  the  original  thirteen.  The  early 
constitutions  modelled  as  we  have  seen  after  the  colonial 
systems  of  government  theretofore  prevailing,  have  been 
amended  or  superseded  by  new  ones  from  time  to  time,  and 
the  forty-eight  fundamental  laws  of  the  states  afford  a  most 
pleasing  exhibit  of  advancement  in  the  administration  of 
public  affairs  and  the  development  of  the"  principles  of  gov- 
ernment by  a  free  and  intelligent  people.  The  ideas  of  gov- 
ernment generally  entertained  at  the  time  of  the  Revolution, 
having  been  moulded  in  English  forms,  did  not  extend  to  the 
selection  of  executive  and  judicial  officers  by  direct  choice  of 
the  people.  Delegates  to  the  legislative  body,  chosen  in  com- 
paratively small  districts,  were  the  only  officials  selected  by 
vote  of  the  people  in  England.  So,  under  the  first  constitu- 
tions of  the  states,  the  people  elected  only  representatives  to 
the  legislatures,  leaving  to  them  the  selection  of  executive  and 
judicial  officers.  In  Connecticut  the  people  had  always  elected 
their  governors  and  in  Massachusetts  had  done  so  till  their 
charter  was  annulled.  As  a  safeguard  against  the  arbitrary 
exercise  of  power,  the  expedient  of  three  separate  coordinate 
departments  was  adopted.  The  idea  of  this  division  of 
powers  is  thus  clearly  expressed  in  the  fourth  Article  of  the 
declaration  of  rights  in  the  constitution  of  North  Carolina 
of  1776. 

"That  the  legislative,  executive  and  supreme  judicial  pow- 
ers of  government  ought  to  be  forever  separate  and  distinct 
from  each  other."  The  same  idea  is  embodied  in  all  the 
constitutions  and  expressed  in  terms  in  many  of  them.  Over 
and  above  the  division  of  governmental  powers  in  such  man- 
ner as  to  furnish  separate  departments  to  operate  as  a  check 
on  each  other,  the  framers  of  the  constitutions  were  so  jealous 


UNITED  STATES  835 

of  their  personal  rights  and  so  fearful  of  the  tendency,  al- 
ways and  everywhere  manifested  under  established  govern- 
ments, for  officials  to  encroach  on  the  rights  of  the  people, 
that  Bills  of  Rights,  or  Declarations  of  Rights,  were  incorpo- 
rated in  most  of  the  constitutions,  usually  appearing  as  the 
first  part.  These  Bills  or  Declarations  are  in  all  cases  in- 
tended as  limitations  on  the  powers  and  functions  of  govern- 
ment and  reservations  to  the  people  of  full  liberty  of  action 
in  those  particulars  in  which  the  state  has  no  concern.  This 
idea  is  not  expressed  in  direct  terms  in  any  of  the  constitu- 
tions made  prior  to  the  close  of  the  revolutionary  war,  but 
Section  46  of  the  Constitution  of  Pennsylvania  of  1776  reads : 

"The  declaration  of  rights  is  hereby  declared  to  be  a  part 
of  the  constitution  of  this  commonwealth,  and  ought  never 
to  be  violated  on  any  pretense  whatever." 

In  the  present  constitution  of  that  state  adopted  in  1873 
tlie  idea  is  thus  clearly  and  forcibly  expressed  in  the  last  sec- 
tion of  the  Declaration  of  Rights, 

"To  guard  against  transgressions  of  the  high  powers 
which  we  have  delegated,  we  declare  that  everything  in  this 
article  is  excepted  out  of  the  general  powers  of  government, 
and  shall  forever  remain  inviolate." 

The  constitutions  of  Florida,  Alabama,  Delaware,  Ken- 
tucky, Texas  and  North  Dakota  contain  either  identical  or 
similar  language.  In  some  states  the  framers  of  the  consti- 
tutions have  seemed  more  fearful  that  the  bill  of  rights  might 
be  construed  as  a  statement  of  all  the  reserved  rights  of  the 
people,  and  therefore  a  limitation  on  them,  and  have  inserted 
the  following  clause  (copied  from  the  constitution  of  Mary- 
land of  1867) : 

"This  enumeration  of  rights  shall  not  be  construed  to  im- 
pair or  deny  others  retained  by  the  people." 

The  same  or  similar  language  occurs  in  the  last  constitu- 
tions of  California,  Colorado,  Iowa,  Kansas,  Louisiana, 
Maine,  Mississippi,  Missouri,  Nebraska,  Nevada,  New  Jersey, 
North  Carolina,  Oregon,  Rhode  Island,  South  Carolina,  Vir- 
ginia, Idaho,  Montana,  Utah,  Wyoming  and  Washington. 
In  the  constitution  of  Kansas  and  some  other  states  there  is 


836  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

added  ''and  all  powers  not  herein  delegated  shall  remain  with 
the  people."  There  is  some  diversity  in  the  statement  of 
these  rights  in  the  different  constitutions,  owing  to  a  diversity 
of  conditions.  The  tendency  of  late  has  been  toward  brevity. 
The  main  purport  of  all  of  them  is  to  make  a  reservation  of 
all  political  power  in  the  people,  except  as  specifically  dele^ 
gated,  to  guarantee  freedom  from  arrest,  except  for  lawful 
cause,  freedom  of  speech,  religious  liberty,  the  right  to  bear 
arms,  exemption  of  property  from  seizure  or  search,  except 
on  lawful  process,  trial  by  jury,  the  writ  of  habeas  corpus, 
freedom  of  the  press,  no  taxation  without  representation,  the 
right  to  peacefully  assemble,  consult  and  instruct  their  rep- 
resentatives, and  to  prohibit  exclusive  privileges,  hereditary 
titles,  the  suspension  of  laws,  arbitrary  arrests,  the  exaction 
of  excessive  bail,  general  search  warrants,  standing  armies 
in  time  of  peace,  perpetuities  and  monopolies,  hereditary 
honors,  privileges  or  emoluments,  and  ex  post  facto  laws,  and 
to  subordinate  the  military  to  the  civil  power.  These  funda- 
mental ideas  found  vigorous  expression  in  the  earliest  con- 
stitutions and  have  not  been  greatly  extended  or  improved  in 
later  ones,  that  of  North  Carolina  of  1776  being  perhaps  as 
clear  and  strong  as  any  other.  Marked  changes  have  been 
made  in  the  terms  of  office  and  modes  of  electing  the  executive 
and  judicial  officers.  Members  of  the  legislature  are  still 
chosen  in  accordance  with  substantially  the  same  principals 
and  in  much  the  same  manner  as  at  first,  but  there  has  been 
a  tendency  to  lengthen  the  official  term,  and  in  many  states 
to  have  less  frequent  sessions.  Under  the  first  constitutions 
members  of  the  legislature  were  generally  elected  annually, 
holding  for  the  year  only.  Under  the  latest  constitutions, 
members  of  the  most  numerous  body,  usually  called  the 
House  of  Representatives,  are  now  chosen  annually  in  nine 
states  and  for  terms  of  two  years  in  all  the  other  states. 
Senators  are  elected  for  one  year  only  in  four  states,  namely, 
Connecticut,  Massachusetts,  Maine,  and  Rhode  Island,  for 
two  years  in  fourteen  states  for  three  years  in  one.  New 
Jersey,  and  for  four  years  in  twenty-nine  states.  The  term 
of  office  of  the  governor  is  one  year  only  in  the  four  New 


UNITED  STATES  837 

England  states  last  named,  it  is  two  years  in  twenty  states, 
three  years  in  one.  New  Jersey,  and  four  years  in  twenty- 
three  states.     In  the  early  days  substantially  all  the  other 
state  executive  officers  were  appointed  by  the  governor  or' 
elected  by  the  Legislature.     Most  of  the  later  constitutions' 
provide  for  the  election  of  some  other  state  officers  by  the 
people,  usually  including  Secretary  of  State,  Treasurer,  Audi- 
tor,  Attorney-General,    Superintendent  of   public   instruction 
and  in  some  states  Surveyor-General.     The  governor  is  now 
elected  by  direct  vote  of  the  people  in  all  the  states,  and  in 
most,  if  not  all  of  them,  a  Lieutenant  Governor  is  also  so 
elected.    Thus  not  only  the  governors  but  the  principal  heads 
of  executive  departments  are  chosen  directly  by  the  people 
by  ballot.     In  England  and  in  the  colonies,  except  as  stated, 
there  was  no  balloting  by  all  the  people  for  executive  or  other ' 
state  officers,  popular  elections  being  confined  to  compara- '' ' 
tively  small  districts. 

In  England,  where  the  judges  have  always  been  appointed 
by  the  king,  it  was  thought  that  the  independence  of  the' 
judiciary  would  be  secured  and  the  administration  of  justice  ■ 
improved  by  giving  the  judges  a  life  tenure  of  office  with  a  ' 
fixed  salary  assured,  and  this  was  done  by  Parliament  with' 
this  end  in  view.     In  the  colonies  before  the  revolution,  there 
was  the  same  desire  for  an  independent  judiciary  and  the! 
same  means  was  adopted  to  secure  it.     The  effect  of  the 
difference  between  the  appointive  system  in  England  and  the^ 
elective  system  in  America  was  not  at  first  perceived.     The  ■ 
judges  were  appointed  by  the  governor  or  chosen   by  the'- 
legislature  and  held  during  good  behavior.     This  system  is  *  = 
still  preserved  in  the  appointment  of  the  judges  of  the  United'; 
States  and  in  their  tenure  of  office.     It  has  since  been  per-'' 
ceived  that  there  is  a  wide  difference  between  independence!  ' 
of  the  crown  and  independence  of  the  people.     Under  the' 
English  system  life  tenure  tended  to  judicial  independence 
and  afforded  a  check  on  the  exercise  of  arbitrary  power  by  ' 
the  king;  under  the  American  it  tends  to  independence  of'^ 
the  people  and  the  exercise  of  arbitrary  power  by  the  judges, 
and  to  judicial  favoritism.     It  fills  the  bench  with  men  too  ' 


838  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

old  for  usefulness  and  too  much  attached  to  all  that  is  bad 
in  the  law  and  the  system  of  administering  it  to  admit  of  a 
progressive  administration  of  justice  by  them.  These  con- 
siderations have  not  escaped  the  attention  of  the  framers  of 
the  new  state  constitutions,  and  in  all  the  new  states  the 
judicial  offices  have  been  made  elective  for  limited  terms. 
In  most  of  the  original  states  a  similar  change  has  been  made 
under  later  constitutions.  There  is  still  what  amounts  prac- 
tically to  life  tenure  in  Delaware,  Florida,  Massachusetts, 
New  Hampshire  and  Rhode  Island.  The  terms  in  the  other 
states  vary  from  two  years  in  Vermont  to  twenty-one  in 
Pennsylvania,  for  the  judges  of  the  court  of  last  resort,  the 
term  most  common  being  six  years  in  nineteen  of  the  states. 
The  principle  of  popular  election  of  judges  has  not  yet  been 
universally  adopted.  In  nine  states  the  judges  are  still  ap- 
pointed by  the  governor,  confirmation  by  the  senate  being 
required  in  eight  of  these,  in  five  they  are  chosen  by  the 
Legislature,  and  in  the  remaining  thirty-four  including  all 
the  most  populous  states,  they  are  elected  by  the  people.  The 
institution  of  a  council  of  state,  apart  from  the  heads  of 
departments  of  the  state  government,  which  obtained  at  the 
time  of  the  formation  of  the  state  governments,  has  nearly 
disappeared  in  that  form,  but  the  chief  executive  officers 
form  a  kind  of  executive  council  for  certain  administrative 
purposes.  The  evolution  of  state  constitutions  to  their  present 
type  of  remarkable  uniformity,  when  differences  of  condi- 
tions are  considered,  has  been  effected  in  some  states  by 
amendment  only  of  the  early  constitutions,  submitted  to  the 
people  for  ratification,  and  in  others  by  conventions  called 
to  frame  new  constitutions.  Among  the  best  provisions  of 
all  the  constitutions  are  those  which  provide  for  their  own 
amendment  or  abrogation  whenever  the  people  see  fit  to  make 
changes.  More  than  a  majority  vote  of  the  legislature  is 
generally  required,  usually  two-thirds,  to  submit  an  amend- 
ment or  call  a  convention,  but  this  restriction  has  not  had 
the  effect  to  prevent  frequent  alterations  of  the  fundamental 
laws  of  the  states.  Of  the  thirteen  original  states  Massachu- 
setts alone  still  retains  its  first  constitution,  but  this  has  been 


UNITED  STATES  839 

amended  many  times.  In  Connecticut  the  state  government 
continued  under  the  colonial  charter  till  18 18,  when  a  new 
constitution  was  framed  and  adopted,  this,  however,  had  by 
1875,  been  amended  in  twelve  different  years.  Rhode  Island 
adopted  its  first  constitution  in  1842  and  has  not  amended  it 
many  times.  New  Jersey  adopted  a  new  constitution  in  1844. 
Delaware,  New  Hampshire  and  New  York  have  each  had 
three  constitutions,  and  New  York  has  also  adopted  numer- 
ous amendments.  North  Carolina,  Pennsylvania  and  Maine 
have  each  had  four,  Virginia  and  Georgia  six  and  South 
Carolina  seven.  The  number  for  the  last  named  states  and 
North  Carolina  is  due  in  part  to  the  Civil  War,  which  oc- 
casioned new  constitutions  at  the  commencement  and  after 
the  conclusion  of  the  war.  This  occurred  in  all  the  seceded 
states.  Other  northern  states,  admitted  after  the  Revolu- 
tionary War,  have  shown  almost  equal  activity  in  remoulding 
their  fundamental  laws.  The  early  types,  of  which  that  of 
Massachusetts  is  the  most  full,  by  the  declaration  of  rights, 
exclude  certain  matters  from  governmental  interference,  di- 
vide the  powers  into  three  coordinate  branches,  and  impose 
certain  restrictions  on  the  action  of  the  Legislature.  The 
manner  of  electing  officials  and  their  duties  are  regulated  and 
the  methods  to  be  pursued  in  the  enactment  of  laws.  That  of 
Massachusetts  devotes  space  to  educational  institutions  and 
to  forms  of  official  oaths  and  religious  declarations,  requiring 
all  state  officers  to  declare  that  they  believe  the  Christian  re- 
ligion and  are  possessed  of  the  amount  of  property  required 
as  a  qualification  for  the  office.  A  property  qualification  was 
required  by  most  of  the  early  constitutions  to  entitle  a  person 
to  vote.  In  Massachusetts  he  must  have  a  freehold  estate 
yielding  £3  per  year  or  £60  of  other  property.  It  is  some- 
times asserted  that  the  southern  states  were  more  aristocratic 
in  their  ideas  than  the  northern  ones,  but  this  does  not  find 
expression  in  their  constitutions.  In  Pennsylvania  and  North 
Carolina  it  was  only  required  that  the  voter  should  have 
resided  in  the  state  a  year  and  paid  a  tax,  in  Georgia  he  must 
have  £10  value  or  be  a  mechanic  with  six  months'  residence, 
in  Maryland  fifty  acres  of  land  or  £30  value.  ' 


840  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

By  new  constitutions  or  amendments  to  the  old  the  right 
of  suffrage  has  been  extended  in  most  of  the  states  to  all 
males  twenty-one  years  old,  who  have  resided  in  the  state  the 
requisite  time,  six  months  or  a  year  in  most  cases,  and  who 
are  not  criminals  or  public  charges  or  non  compos  mentis. 
Most  states  allow  foreign  born  men,  who  have  declared  their 
intention  to  become  citizens  of  the  United  States,  to  vote. 
There  is  usually  a  requirement  that  the  person  offering  to 
vote  shall  have  resided  in  the  voting  district  a  prescribed 
length  of  time. 

The  tide  continued  steadily  in  the  direction  of  extension 
of  the  elective  franchise  till  very  near  the  close  of  the  nine- 
teenth century.  The  last  state  to  do  away  with  its  require- 
ment of  a  property  qualification  was  Rhode  Island,  which  in 
1888  changed  its  provision  so  as  to  take  away  the  require- 
ment, except  in  voting  for  city  council  and  on  the  expendi- 
ture of  money  in  the  towns,  where  it  is  still  retained.  At  that 
date  the  only  cases  of  further  restrictions  were  those  requir- 
ing the  voter  to  have  paid  taxes  in  Delaware,  Georgia,  Penn- 
sylvania, Tennessee  and  Massachusetts,  and  that  the  voter, 
except  under  certain  stated  conditions  excusing  it,  should  be 
able  to  read.  The  peculiar  situations  in  some  of  the  southern 
states,  where  the  fear  of  negro  rule  has  ever  been  present 
since  the  adoption  of  the  fifteenth  amendment  to  the  Consti- 
tution of  the  United  States,  has  led  to  the  adoption  of  peculiar 
constitutional  provisions,  designed  to  take  away  the  elective 
franchise  from  the  negroes  without  violating  the  fifteenth 
amendment.  In  this,  South  Carolina,  where  the  colored 
population  is  most  largely  in  the  majority,  took  the  lead,  and 
in  1895  adopted  a  new  constitution,  which  requires  that 
the  voter  must  have  resided  in  the  state  two  years,  in  the 
county  one  year  and  in  the  polling  precinct  four  months  be- 
fore election,  and  have  paid  a  poll  tax.  He  must  be  regis- 
tered, and  to  obtain  registration  must  be  able  to  read  any 
section  of  the  state  constitution  submitted  to  him  by  the  regis- 
tration officer,  or  understand  and  explain  it  when  read  to  him 
by  the  officer.  After  1898  he  must  be  able  to  both  read  and 
write  any  section  of  the  constitution  submitted  to  him,  or 


UNITED  STATES  841 

must  own  and  have  paid  taxes  on  property  assessed  at  $300. 
There  are  fifteen  sections  in  the  article  on  Right  of  Suffrage. 
The  lead  of  South  Carolina  was  followed  in  Louisiana,  where 
the  negroes  also  constitute  a  majority,  and  in  1898  a  consti- 
tution was  adopted,  requiring  that  a  voter  be  able  to  read 
and  write  or  be  a  bona  fide  owner  of  property  assessed  at 
$300,  but  all  persons,  who  were  voters  under  the  laws  of  the 
state  where  they  resided  on  January  i,  1867,  ^^^  ^-^l  their 
lineal  descendants,  are  exempted  from  these  requirements 
and  may  vote  without  regard  to  either  of  them.  Substan- 
tially the  same  provision  is  made  in  the  constitution  of  North 
Carolina,  adopted  in  1902.  As  negroes  were  not  entitled  to 
vote  in  1867,  i^  practically  excludes  the  illiterate  negroes  and 
admits  the  illiterate  whites,  without  doing  so  in  express  terms. 
The  great  question  with  reference  to  the  elective  franchise, 
now  being  most  generally  considered,  is  concerning  the  right 
of  females  to  vote.  Utah,  Idaho  and  Wyoming,  by  constitu- 
tions framed  in  1889,  have  provided  that  the  right  to  vote 
shall  not  be  denied  on  account  of  sex.  In  an  earlier  consti- 
tution, that  of  1876,  Colorado  had  provided  that  Ihe  Legis- 
lature might  permit  women  to  vote.  In  1912  California  and 
Kansas  adopted  amendments  giving  women  the  right  to  vote. 
The  constitution  of  South  Dakota  allows  women  to  vote  at 
school  elections,  and  the  constitutions  of  other  states  permit 
the  legislature  to  extend  to  them  the  right  to  vote  at  school 
elections.  The  modern  state  constitutions  go  more  into  mi- 
nute details  than  the  earlier  ones,  and  the  subjects  of  taxa- 
tion, municipal  .organization,  private  corporations,  and 
education  have  received  much  attention.  Nowhere  else  has 
the  desire  for  internal  improvements,  especially  for  the  con- 
struction of  railroads,  been  such  a  passion  among  the  people. 
From  the  earliest  days  of  railroad  building  to  the  present 
time  there  has  been  a  tendency  to  burden  states,  counties  and 
municipalities  with  indebtedness,  often  to  a  ruinous  amount, 
to  obtain  new  railroads,  and,  when  the  full  burden  was  felt, 
to  attempt  to  repudiate  it.  Bonds  issued  for  these  purposes 
have  been  and  still  are  heavy  burdens  on  a  large  part  of  the 
country.     In  the  early  stages  of  railroad  building  state  aid 


842  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

was  often  granted  and  in  some  instances  construction  was 
undertaken  by  the  state.  There  was  also,  prior  to  the  Civil 
War  and  the  passage  of  the  national  banking  act,  a  strong 
tendency  to  establish  state  banks,  authorized  to  issue  bills 
based  to  a  greater  or  less  degree  according  to  the  views  of 
the  Legislature  on  the  credit  of  the  state.  About  1850,  some 
of  the  states,  which  had  suffered  most  from  the  reckless  use 
of  credit,  commenced  to  adopt  constitutional  restrictions, 
thus  the  constitution  of  Ohio  adopted  in  1851  provides,  'The 
credit  of  the  state  shall  not  in  any  manner  be  given  or  loaned 
to,  or  in  aid  of,  any  individual,  association,  or  corporation 
whatever;  nor  shall  the  State  ever  hereafter  become  a  joint 
owner  or  stockholder  in  any  company  or  association  in  this 
state  or  elsewhere,  formed  for  any  purpose  whatever."  The 
state  was  also  prohibited  from  assuming  the  debts  of  any  of 
its  subdivisions,  or  of  any  corporation  whatever,  unless  to 
repel  invasion  or  suppress  insurrection,  and  counties,  cities 
and  towns  were  prohibited  from  becoming  stockholders  in 
corporations  or  loaning  their  credit  to  aid  them.  These  pro- 
visions indicate  the  prevalence  of  the  instance  thereby  pro- 
hibited. The  newer  states,  however,  have  exhibited  the  old 
passion  for  public  improvements,  especially  railroads,  and 
some  of  them  still  permit  a  limited  amount  of  aid  to  be  voted 
by  counties,  cities  and  townships  for  the  construction  of 
railroads. 

The  regulation  of  the  governments  of  cities  is  a  problem 
not  very  definitely  solved  as  yet.  It  is  a  subject  of  constant 
legislation  and  change,  wherever  there  are  large  cities,  but  is 
seldom  treated  in  much  detail  in  state  constitutions.  The 
general  framework  of  the  governmental  system  has  not  been 
greatly  changed.  All  the  states  are  divided  into  counties,  the 
counties  generally  into  towns  or  townships  and  the  townships 
into  school  and  road  districts.  These  are  the  only  general 
divisions  of  the  territory  for  administrative  purposes.  Con- 
gressional, judicial,  senatorial,  representative  and  other  dis- 
tricts are  established  for  the  election  of  officers  and  to  define 
their  territorial  jurisdiction.  The  principle  of  local  self- 
government    is    applied,    subject   to    legislative    and    judicial 


UNITED  STATES  843 

supervision.  Each  county  has  its  board  charged  with  super- 
vision of  roads,  bridges,  county  buildings  and  county  inter- 
ests. In  each  a  court  of  general  original  jurisdiction  is  held 
at  stated  times.  Each  county  elects  its  officers,  including 
generally  in  addition  to  the  county  board,  a  sheriff,  treasurer, 
recorder  of  deeds,  superintendent  of  schools,  coroner,  at- 
torney and  county  clerk.  Other  county  officers  are  sometimes 
added.  In  the  New  England  States,  New  York  and  other 
states  closely  modelling  their  township  organizations  after 
them,  the  town  officers  are  more  numerous  and  their  duties 
more  important  than  in  the  southern  and  some  of  the  western 
states,  where  the  tendency  is  to  trust  more  to  the  county 
boards.  The  school  districts  are  very  important  divisions  and 
have  charge  of  their  own  schools,  which  are  generally  looked 
after  by  a  district  board  in  accordance  with  specific  directions 
given  by  the  voters  at  a  general  meeting.  The  taxes  for 
school  purposes  are  usually  voted  at  the  annual  meeting  and 
the  teachers  are  employed  by  the  board. 

At  the  time  of  the  Revolution  the  prevailing  opinions  with 
reference  to  the  distribution  of  governmental  powers  were, 
that  usurpation  of  authority  and  oppressive  exercise  of  it 
were  most  to  be  apprehended  from  executive  officers,  that 
the  legislative  body,  made  up  of  representatives  chosen  di- 
rectly by  the  people,  could  best  be  trusted  to  guard  their  in- 
terests and  should  be  the  repository  of  the  most  important 
delegated  powers.  The  judiciary  was  not  then  looked  upon 
as  more  than  a  department  for  the  adjustment  of  contro- 
versies between  private  persons,  municipalities  and  states  and 
for  the  trial  of  persons  charged  with  crimes.  That  it  would 
ever  supervise,  control  or  nullify  legislative  action  was  not 
thought  of,  because  no  such  power  had  theretofore  been  ex- 
ercised in  England  or  America  by  the  courts,  nor  is  there  yet 
any  such  thing  as  an  unconstitutional  act  of  the  British  Parlia- 
ment. But  the  idea  of  placing  limitations  on  the  powers  of 
government  necessarily  carried  with  it  limitations  on  the 
powers  of  the  Legislatures,  then  regarded  as  of  such  pre- 
ponderating influence  and  importance.  The  bills  of  rights 
are  all  limitations  on  the  powers  of  all  departments  of  gov- 


844  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ernment,  as  well  as  mandatory  in  directing  the  performance 
of  certain  official  duties. 

Throughout  colonial  times  the  legislatures  had  always 
stood  as  the  champions  of  the  people,  representing  their  in- 
terests and  urging  their  claims.  The  governors,  and  those 
holding  office,  by   appointment   from   them,    represented   the 

.  British  government.  It  was  through  the  governors  that  en- 
forcement of  the  acts  of  Parliament  and  the  administrative 
policy  of  the  ministry  was  attempted.  When  the  change  was 
made,  which  took  away  the  connection  between  the  governors 
and  the  British  crown,  the  people  did  not  at  once  get  rid  of 
their  antipathy  to  governors  nor  determine  to  invest  them 

^  with  extensive  power.     There  has,  however,  been  a  decided 

,  tendency  to  place  more  power  in  the  hands  of  the  governors. 
By  the  original  constitutions  the  governors  had  no  part  in 

,  the  making  of  laws  and  no  veto  on  the  action  of  the  legis- 
lature in  Virginia,  North  Carolina,  New  Hampshire,  New 
Jersey,  Delaware,  Georgia  or  Maryland.  In  Massachusetts 
the  governor  might  object,  and  a  two-thirds  vote  was  then 
required  to  pass  the  act.  In  New  York  the  governor,  chancel- 
lor and  judges  of  the  Supreme  Court,  or  any  two  of  them, 

.  were  required  to  revise  bills  and  might  object  to  them,  when 
a  two-thirds  vote  was  required  for  their  passage.  In  Con- 
necticut and  Rhode  Island,  under  their  charters,  the  gover- 
nors were  a  part  of  the  law-making  power.  In  South  Carolina 
the  governor  was  given  an  absolute  veto  under  the  constitu- 
tion of  1776.  Under  the  existing  constitutions  the  governor 
has  no  absolute  negative  on  legislation  in  any  state,  but  in  all 
but  Delaware,  North  Carolina,  Ohio  and  Rhode  Island,  he 
may  return  the  bill  with  his  objections,  when  if  it  receives  the 
requisite  majority,  it  may  become  a  law.  The  vote  required 
varies  from  a  majority  of  all  the  members  elected  to  each 
house,  to  two-thirds  of  all  elected,  the  latter  being  the  usual 
requirement.  In  Vermont  the  objection  of  the  governor  sus- 
pends the  operation  of  the  law  till  the  next  session  of  the 
Legislature.  Of  the  early  constitutions  that  of  Massachusetts 
is  the  longest  and  is  divided  into  six  chapters,  preceded  by  the 
Declaration  of  Rights,  which  contains  thirty  sections  or  Arti- 


UNITED  STATES  ■        845 

cles,  as  they  are  termed.  Chapter  I  relates  to  the  Legislature, 
confers  legislative  power  on  the  senate  and  house  of  repre- 
sentatives, prescribes  the  manner  of  their  election,  time  of 
meeting  and  number  required  for  a  quorum  and  exempts 
members  from  arrest  going  to,  returning  from  and  attending 
the  assembly.  Chapter  II  prescribes  the  manner  of  electing 
the  governor,  makes  him  commander-in-chief  of  the  army 
and  navy,  and  confers  the  pardoning  power  and  power  to 
appoint  all  judicial  and  executive  offices,  with  certain  named 
exceptions.  All  public  moneys  are  required  to  be  paid  out 
only  on  his  warrants.  A  lieutenant  governor  and  a  council 
of  nine,  to  advise  the  governor,  are  also  provided  for  in  this 
chapter  and  the  mode  of  their  election  pointed  out.  A  secre- 
tary, treasurer,  receiver  general,  commissary  general,  notaries 
public  and  naval  officers  are  required  to  be  chosen  annually 
by  the  legislature  by  joint  ballot.  Chapter  III  treats  of  the 
judicial  power  and  makes  the  terms  of  judicial  officers  during 
good  behavior,  except  justices  of  the  peace,  whose  terms  are 
seven  years.  Article  5  of  this  chapter  reads:  "All  causes 
of  marriage,  divorce  and  alimony  and  all  appeals  from  the 
judges  of  probate  shall  be  heard  and  determined  by  the  gov- 
ernor and  council  until  the  legislature  shall,  by  law,  make 
other  provision."  Chapter  IV  provides  for  the  election  of 
delegates  to  congress  by  joint  ballot  of  the  Legislature. 
Chapter  V  relates  to  the  University  of  Cambridge,  confirms 
its  charter  rights,  and  makes  it  the  duty  of  legislatures  and 
magistrates  to  "cherish  the  interests"  of  schools,  learning, 
arts,  science,  etc.  Chapter  VI  contains  long  forms  of  official 
oaths  and  declarations,  prohibits  any  person  from  holding 
more  than  one  of  the  principal  offices  named,  adopts  the  laws 
theretofore  adopted,  used  and  approved  in  the  courts,  requires 
that  the  writ  of  habeas  corpus  be  made  free  and  cheap,  and 
prohibits  its  suspension,  except  on  urgent  occasions  and  for 
not  more  than  twelve  months.  This  old  constitution  is  the 
only  one  the  state  has  ever  had,  but  it  has  been  amended 
from  time  to  time.  With  all  its  amendments  it  lacks  much 
of  the  completeness  of  the  later  constitutions,  of  which  per- 
haps a  fair  type  is  that  adopted  in  Missouri  in  1875,  which  is 


846  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

divided  into  fifteen  articles.  Art.  i  confirms  the  existing: 
boundaries  of  the  state  and  makes  all  rivers  bordering  on  the 
state  free  public  highways  to  all  citizens  of  the  United  States- 
Art.  2,  is  the  Bill  of  Rights  with  thirty-two  Sections  of  the 
usual  purport.  Art.  3  distributes  the  powers  of  government 
among  the  three  departments.  Art.  4,  vests  the  legislative 
power  in  the  general  assembly,  provides  for  the  apportion- 
ment of  the  state  into  senatorial  and  legislative  districts,  fixes 
the  qualifications,  compensation  and  terms  of  office  of  sena- 
tors and  representatives,  provides  the  manner  of  organization 
of  the  houses,  requires  a  majority  of  all  for  a  quorum,  regu- 
lates the  procedure  in  the  passage  of  bills  with  minuteness^ 
requiring  the  vote  on  final  passage  to  be  taken  by  yeas  and 
nays  and  recorded  on  the  journal.  Then  follow  unusually 
severe  restrictions  on  the  power  of  the  legislature  to  appro- 
priate money,  requiring  the  payment  of  the  public  debt  to  be 
first  provided  for,  appropriations  for  school  purposes  next^ 
and  pay  of  the  assembly  last.  The  power  to  create  a  public 
debt  is  limited  to  unforeseen  emergencies,  and  the  legislature 
is  prohibited  from  lending  the  credit  of  the  state  to  aid  any 
person  or  corporation  or  give  away  public  money,  except  in 
case  of  a  public  calamity,  or  to  authorize  any  county  or 
municipality  to  do  so  or  to  become  a  stockholder  in  any  cor- 
poration, and  the  assembly  is  prohibited  from  subscribing  for 
stock  in  any  corporation.  The  assembly  is  also  prohibited 
from  passing  local  or  special  laws  for  a  long  list  of  enumer- 
ated purposes,  including  the  granting  of  charters  and  cor- 
porate privileges.  This  constitution  is  of  the  most  extreme 
type  in  the  strictness  with  which  it  restrains  the  action  of  the 
Legislature.  Article  5,  relates  to  the  executive  departments 
and  prescribes  the  terms  of  office,  manner  of  election,  powers 
and  duties  of  the  governor  and  members  of  the  executive 
department.  Article  6,  relates  to  the  Judicial  Department, 
prescribes  the  powers  and  duties  of  the  different  courts,  the 
number  and  manner  of  election  of  the  judges  and  contains 
forty-four  sections.  Article  7.  Authorizes  the  impeachment 
of  all  the  principal  executive  and  judicial  officers  by  the  house 
and  their  trial  by  the  senate,  but  limits  the  judgment  to  re- 


UNITED  STATES  847 

moval  and  disqualification  from  holding  office.  Article  8. 
Prescribes  the  qualifications  of  electors  and  requires  all  elec- 
tions by  the  people  to  be  by  ballot  and  all  elections  by  repre- 
sentatives to  be  viva  voce.  Article  9  relates  to  counties,  cities 
and  towns  and  provides  for  their  organization  and  govern- 
ment. Cities  of  100,000  population  or  more  are  authorized 
to  frame  their  own  charters,  submit  them  to  the  people  and 
if  ratified  by  their  votes  the  charter  becomes  operative.  Al- 
ternative sections  may  be  submitted  and  voted  on  separately 
by  the  voters  without  prejudice  to  the  others.  Article  10  treats 
of  revenue  and  taxation  and  is  very  rigid  in  its  limitations. 
The  legislature  can  only  impose  taxes  for  general  purposes, 
powers  of  local  taxation  can  only  be  exercised  by  the  coun- 
ties, cities,  towns  and  municipalities  for  which  the  moneys 
raised  are  to  be  expended.  Taxes  are  required  to  be  uniform 
and  no  property  can  be  discharged  from  its  equal  share  of 
a  public  burden,  except  public  property  which  is  made  exempt 
from  all  taxes.  The  creation  of  municipal  indebtedness  and 
the  amount  of  the  annual  tax  levy  in  counties,  cities,  towns 
and  school  districts  is  strictly  limited.  No  other  state  has 
such  full  or  rigid  restrictions  in  these  respects.  Article  11 
in  its  first  section  expresses  modern  American  views  on  the 
subject  of  education.  "A  general  diffusion  of  knowledge 
and  intelligence  being  essential  to  the  preservation  of  the 
rights  and  liberties  of  the  people,  the  general  assembly  shall 
establish  and  maintain  free  public  schools  for  the  gratuitous 
instruction  of  all  persons  in  this  state  between  the  ages  of 
six  and  twenty."  Separate  schools  for  children  of  African 
descent  are  required.  Provision  is  made  for  the  maintenance 
of  the  State  University  and  the  investment  of  the  public 
school  funds.  Article  12  deals  with  corporations  and  pro- 
hibits their  creation  by  special  acts  or  the  conferring  of 
special  powers,  and  the  issuing  of  stock  except  for  a  valuable 
consideration  received.  Railroad  corporations  are  separately 
treated  and  are  prohibited  from  discriminating  between 
patrons,  from  consolidating  with  parallel  or  competing  lines 
and  from  granting  passes  to  members  of  the  assembly,  board 
of  equalization,   or  any   State,   county  or  municipal  officer. 


848  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  acceptance  of  a  pass  forfeits  the  office.  The  creation  of 
a  state  bank  is  prohibited  and  any  law  authorizing  the  crea- 
tion of  banking  corporations  must  be  submitted  to  a  vote  of 
the  people  before  going  into  effect.  It  is  made  a  crime  for 
any  bank  officer  to  assent  to  the  receipt  of  deposits  after 
knowledge  of  the  insolvency  of  the  bank.  The  legislature* 
cannot  remit  the  forfeiture  of  a  charter,  and  the  police  power 
of  the  state  shall  never  be  abridged  or  so  construed  as  to 
permit  corporations  to  conduct  their  business  in  such  manner 
as  to  infringe  the  equal  rights  of  individuals  or  the  general 
well-being  of  the  state.  An  important  provision  is  that  which 
authorizes  the  condemnation,  under  the  power  of  eminent 
domain,  of  the  property  and  franchises  of  corporations,  as 
well  as  individuals,  and  provides  that  the  right  of  trial,  by 
jury  shall  remain  inviolate  in  all  cases  where  corporations  are 
interested  in  the  determination  of  claims  for  compensation  in 
the  exercise  of  the  right  of  eminent  domain.  This  provision 
appears,  in  almost  identical  language,  in  the  constitution  of 
Illinois  of  1870,  of  Pennsylvania  of  1873  and  Arkansas  of 
1874,  and  its  importance  can  only  be  measured  by  the  grow- 
ing sentiment  in  favor  of  public  ownership  and  operation  of 
public  utilities,  now  mainly  in  the  hands  of  private  corpora- 
tions. The  extension  of  the  principle  of  local  self-government 
logically  lies  in  the  direction  of  its  application  to  great  com- 
binations to  carry  on  a  business  which  requires  large  capital 
and  many  employees.  It  is  a  little  surprising  not  to  find  the 
provision,  common  to  most  state  constitutions  since  the  de- 
cision of  the  Supreme  Court  in  the  Dartmouth  College  case, 
that  corporations  may  be  created  only  by  general  laws  which 
may  be  amended  or  repealed.  The  remaining  articles  of  this 
constitution  are  Article  13  which  treats  of  the  organization 
of  the  militia.  Article  14  with  miscellaneous  provisions,  pro- 
hibiting civil  or  criminal  proceedings  growing  out  of  acts 
done  in  the  military  service  during  the  civil  war  under  the 
authority  of  either  the  Federal  or  Confederate  government, 
disqualifying  duelist  from  holding  office,  also  any  person 
holding  an  office  under  the  United  States,  prohibiting  the  in- 
crease of  the  compensation  of  officers  during  their  terms  of 


UNITED  STATES  849 

office  or  extending  their  official  terms,  prohibiting  lotteries, 
and  making  some  minor  regulations.  Article  15  points  out 
the  mode  of  amending  the  constitution,  requiring  only  a  ma- 
jority of  the  legislature  to  submit  and  a  majority  of  the 
people  to  adopt  an  amendment.  Many  amendments  have 
been  adopted,  including  one  allowing  three- fourths  of  the 
jurors  to  render  a  verdict  in  a  civil  case. 

The  new  constitution  of  Illinois  adopted  in  1870  is  not  so 
long  but  covers  much  the  same  ground,  having  fourteen  arti- 
cles, among  which  those  relating  to  Revenue,  Counties  and 
Corporations  are  quite  full.  A  separate  article  is  devoted  to 
warehouses,  a  subject  not  elsewhere  of  so  much  importance, 
Chicago  being  the  great  grain  market  and  storage  point.  The 
constitution  of  Pennsylvania  of  1873  is  not  quite  so  long  as 
that  of  Illinois,  but  is  divided  into  eighteen  Articles.  Sub- 
stantially the  same  ground  is  covered  though  with  less  particu- 
larity. Though  the  state  has  very  large  cities  the  article  on 
cities  and  city  charters  has  but  three  short  sections,  authoriz- 
ing cities  to  be  chartered  when  the  people  vote  in  favor  of  it 
and  have  10,000  inhabitants,  requiring  that  debt  shall  not  be 
created  by  any  municipal  commission,  except  in  pursuance  of 
an  appropriation  previously  made,  and  that  an  inviolable 
sinking  fund  shall  be  created  for  the  payment  of  funded 
debts.  Separate  articles  are  devoted  to  Private  Corporations, 
Railroads  and  Canals.  The  granting  of  passes,  except  to  em- 
ployees, is  prohibited,  but  no  penalty  is  attached  to  its 
violation. 

State  constitutions,  except  in  their  distribution  of  the 
powers  of  government,  cannot  be  said  to  have  reached  any 
settled  type.  The  rapid  growth  of  cities  and  the  increasing 
importance  of  corporations,  furnish  subjects  not  yet  satisfac- 
torily adjusted. 

The  general  idea  of  the  governmental  system  of  the  United 
States  is  now  quite  fully  and  logically  carried  into  practical 
operation  in  the  states  and  nation.  Matters  of  general  con- 
cern to  all  the  states  are  entrusted  to  the  Federal  Government. 
The  extreme  conservatism  of  the  provision  of  the  Constitu- 
tion  of   the  United    States   on  the   subject  of   amendments 


Sho  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

seriously  retards  the  correction  of  its  defects.  The  require- 
ment of  a  two-thirds  vote  of  each  branch  of  Congress  and 
ratification  by  three-fourths  of  the  states,  seems  an  unrea- 
sonable restriction  on  the  will  of  majorities.  The  constitution 
requires  the  House  of  Representatives  to  be  elected  by  the 
people  of  the  states,  and  the  members  are  now  usually  chosen 
by  districts,  the  boundaries  of  which  are  fixed  by  the  state 
legislature,  though  in  some  cases  they  are  elected  by  the  elect- 
ors of  the  whole  state.  The  Constitution  of  the  United  States 
provides  for  the  election  of  president  and  vice-president  by 
electors  chosen  for  that  purpose,  but  the  people  have  adopted 
a  system  which  renders  the  work  of  the  electors  a  mere  mat- 
ter of  form.  The  electors  are  named  by  party  conventions 
held  in  the  several  states  and  are  expected  to  vote  for  the 
candidate  named  by  that  party  in  its  national  convention.  No 
instance  has  yet  occurred  in  the  history  of  the  republic  of  a 
presidential  elector  betraying  his  party  and  voting  for  a  differ- 
ent candidate.  No  official  of  a  state  or  the  nation  is  more 
truly  selected  by  the  people  than  the  president.  The  great 
powers  conferred  on  him  and  the  exalted  rank  of  the  office 
challenge  the  attention  of  all  the  people  to  the  merits  of  pro- 
posed candidates,  and  personal  worth  is  an  important  element, 
though  not  equal  in  its  influence  on  the  voters  to  that  of  the 
party  name. 

It  is  a  source  of  great  satisfaction  to  Americans  that  the 
presidential  office  has  always  been  filled  by  a  man  of  high 
character  and  good  ability.  The  names  of  most  of  the  presi- 
dents would  have  appeared  among  the  illustrious  men  of 
the  country,  if  they  had  not  been  chosen  to  that  high  office. 
The  masses  of  the  people  take  more  pride  in  the  president 
than  in  any  other  public  official  and,  as  a  rule,  have  been  bet- 
ter satisfied  with  the  manner  in  which  he  has  discharged 
his  duties.  More  than  a  century  of  elective  presidents  has 
confirmed  the  wisdom  of  trusting  the  people  to  choose  their 
chief  magistrate. 

At  the  time  of  the  Revolution  the  judiciary  took  no  leading 
part  in  public  affairs.  From  the  earliest  times  of  the  British 
monarchy  they  were  appointees  of  the  crown.     When  the 


UNITED  STATES  851 

Constitution  of  the  United  States  was  framed,  the  existing 
system  was  continued  without  change  except  of  the  appointing 
power.  Subsequent  experience  has  however  disclosed  its  de- 
fects, and  the  states  have  substituted  a  judiciary  elective  for 
fixed  terms  in  place  of  an  appointive  one  for  life. 

The  constant  tendency  to  restrict  the  powers  of  the  legis- 
latures, so  strongly  manifested  in  the  state  constitutions,  has 
not  been  exhibited  with  reference  to  executive  departments, 
which  have  been  multiplied  and  their  functions  extended,  with 
no  added  restrictions  of  note  beyond  making  all  the  chief 
officers  in  the  states  elective.  The  legislatures  have  generally 
been  relied  on  to  provide  all  necessary  checks  on  executive 
action. 

As  the  power  of  the-  legislatures  has  been  restricted  by 
constitutional  inhibitions,  the  power  of  the  courts  has  grown, 
though  without  any  express  constitutional  authority.  The 
system  of  written  constitutions  makes  a  division  of  the  laws 
into  constitutional,  which  may  not  be  violated  by  any  one 
and  can  only  be  changed  by  the  people,  and  legislative,  which 
the  legislature  may  change  at  will.  In  the  early  days  the 
question  arose  whether  a  court  had  the  right  to  declare  an 
act  of  congress  or  of  a  state  legislature  void,  if  in  conflict 
with  the  constitution,  and  it  was  very  logically  held  that  it 
had.  Though  in  the  early  history  of  the  country  the  courts 
were  exceedingly  loth  to  nullify  legislative  acts,  the  constant 
exercise  of  the  power  to  do  so  has  established  a  practice,  now 
very  prevalent,  and  no  act  of  the  legislature,  materially  af- 
fecting great  private  interests,  is  now  regarded  as  law  till  its 
constitutionality  has  been  passed  on  by  the  court  of  last  resort. 
The  Federal  Courts  are  especially  free  in  disregarding  and 
nullifying  acts  of  state  legislatures  on  constitutional  grounds, 
and  have  even  gone  so  far,  in  construing  acts  restricting  the 
charges  of  public  service  corporations,  as  to  sit  in  judgment 
on  the  reasonableness  of  the  rates*  established  by  the  legis- 
lature, thus  substituting  their  own  judgment  in  a  matter  as 
to  which  minds  naturally  differ,  for  that  of  the  law-making 
body.  It  apparently  has  escaped  the  attention  of  constitution 
makers,  that  they  were  thus  so  greatly  exalting  the  power  of 


8S2  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  courts.  As  the  courts  pass  judgment  in  most  of  the  states 
only  on  questions  arising  in  cases  coming  before  them,  and 
never  on  abstract  questions  of  law,  it  often  happens  that  an 
act  of  the  Legislature  remains  for  years  printed  in  the  statute 
books  as  a  valid  enactment,  and  is  then  declared  by  the  courts 
of  no  effect.  Neither  the  common  citizen  nor  the  professional 
lawyer  can  ever  tell,  with  absolute  certainty  what  a  court  may 
determine  in  such  a  case.  It  is  always  presumed  that  the 
members  of  the  Legislature  are  as  familiar  with  the  constitu- 
tion under  which  they  act  as  the  courts,  and  that  they  as 
honestly  observe  its  limitations,  yet  the  courts  may  now  be 
relied  on  to  nullify  a  considerable  percentage  of  legislative 
acts  affecting  property  rights.  No  such  inconvenience  at- 
tends the  system  of  any  other  great  country.  It  grows  out 
of  the  desire  to  restrict  governmental  powers,  yet  it  has  re- 
sulted in  exalting  the  power  of  that  branch  of  the  government 
least  subject  to  popular  control,  and  in  the  case  of  the  Federal 
Judiciary,  altogether  beyond  the  peoples'  chastening  hand. 
It  would  seem  that  some  system  should  be  adopted  under 
which  all  acts  of  Congress  and  state  Legislatures  will  pass 
scrutiny  and  judgment  as  to  their  constitutionality,  before 
they  are  given  effect,  and  that  thereafter  they  shall  not  be 
open  to  challenge  on  constitutional  grounds.  The  courts  of 
law  cannot  be  always  trusted  to  be  the  final  arbiters,  not 
merely  as  to  the  powers  of  the  legislative  and  executive  de- 
partments of  governments,  but  as  to  their  own  also.  Perhaps 
it  might  be  well  to  have  all  constitutional  questions  of  this 
kind  passed  on  by  a  tribunal  representing  all  three  depart- 
ments of  the  government,  or  by  an  independent  one  named 
by  the  people.  The  constitution  of  Belgium  provides  that 
authoritative  interpretation  of  the  law  belongs  only  to  the 
law-making  power. 

The  experience  of  126  years  under  the  United  States  Con- 
stitution, during  which  the  territory  has  been  extended  not 
only  across  the  continent,  and  over  Alaska  to  the  Polar  Sea, 
but  also  into  the  Asiatic  Islands,  the  number  of  states  in- 
creased from  thirteen  to  forty-eight,  the  population  from 
3,000,000  to  more  than  93,000,000  exclusive  of  the  Philippine 


UNITED  STATES  853 

Islands  with  a  yearly  influx  now  by  immigration  running  as 
high  as  1,000,000,  made  up  of  people  of  all  nations,  and  the 
strain  of  a  terrific  civil  war,  have  not  pointed  out  any  radical 
defect  in  the  general  framework  of  the  republic.     Improve- 
ments can  always  be  made  in  any  government,  but  the  system 
itself  points  out  how  they  may  be  made  peacefully.     The 
most  surprising  thing  connected  with   American  history  is 
that  so  little  modification  of  the  constitution  resulted  from 
the  Civil  War.    The  seceded  states  were  simply  brought  back 
into  more  harmonious  relations  with  the  others.    The  frame- 
work of  the  state  governments  as  above  pointed  out  has  under- 
gone far  greater  changes,  quite  uniformly  in  the  direction  of 
an  extension  of  the  principle  of  local  self-government.     The\ 
Federal  Government  is  one  of  limited  powers,  confined  to    \ 
matters  of  general  concern.     The  state  governments,  while 
restricted  in  their  functions  in  certain  particulars  by  the  Con- 
stitution of  the  United  States,  and  still  more  by  the  state 
constitutions,  yet  have  a  far  wider  field  of  action  and  affect    / 
the  interests  of  their  citizens  at  many  more  points.     It  is  the    V 
state  Legislature  that  has  power  to  pass  laws  defining  crimes    J 
in  general,  and  fixing  the  punishments  for  them,  and  that  / 
regulates  the  property  rights   of   its  citizens.     At  first  the  I 
legislatures   were  given  power  to   regulate   local   affairs  by  \ 
special  acts,  and  some  of  this  power  is  still  retained  and  ex-    ) 
ercised,  but  the  tendency  still  seems  to  be  in  the  direction  of-^ 
further  constitutional  restrictions  on  the  state  legislatures  and 
greater   local    independence.      State    legislatures    everywhere 
are  subjects  of  severe  criticism.    They  are  always  surrounded 
by  powerful  corrupting  influences.     The  railroad,  insurance 
and  other  great  corporations  are  always  either  asking  legis- 
lation in  their  special  interest  or  striving  to  prevent  acts  cur- 
tailing their  privileges  or  casting  burdens  on  them.    This  leads 
to  the  custom  of  granting  free  passes  and  other  special  favors 
to  the  members  and  to  charges  of  bribery  with  money,  doubt- 
less sometimes  based  on  facts.     Many  efforts  have  been  made 
to  remedy  these  evils,  and  the  use  of  passes  has  been  greatly 
curtailed.      So  long  as   such  great   interests   are  in  private 
hands,  managed  for  personal  gain,  it  is  doubtful  whether  any 


354  EVOLUTIOX  OF  GOVERXMEXTS  AXD  LAWS 

perfect  remedy  can  be  found.  State  legislatures  are  not  so 
vile  however  as  they  are  sometimes  painted.  They  are  usually 
made  up  of  very  fair  representatives  of  both  the  intelligence 
and  the  integrity  of  the  people.  The  State  executive  officers 
have  generally  been  men  of  fair  character,  who  have  man- 
aged their  offices  to  the  satisfaction  of  the  public.  Some 
scandals  are  always  incident  to  the  management  of  the  great 
charitable  and  penal  institutions,  and  there  are  sometimes 
charges  of  cruelty  in  prisons  and  asylums,  but  the  rule  is  that 
prisoners  and  patients  are  treated  kindly,  and  their  needs  well 
and  even  generously  supplied. 

Next  in  order  below  the  state  government  comes  the  county. 
All  the  states  are  divided  into  counties  varying  in  number 
from  three  in  Delaware  to,  two  hundred  and  forty-six  in 
Texas.  The  size  of  counties  is  far  more  nearly  uniform  than 
that  of  the  States,  being  generally  about  as  large  as  will  admit 
of  driving  with  teams  from  every  part  to  a  central  point  in 
a  day.  Some  of  the  western  states,  however,  where  popula- 
tion is  very  sparce,  have  very  large  counties,  many  times 
greater  than  such  states  as  Rhode  Island  and  Delaware.  Each 
county  has  its  court  house  and  its  quota  of  county  officers 
occupying  it.  Here  at  stated  times  the  great  court  of  general 
original  jurisdiction  is  held,  commonly  termed  either  the  dis- 
trict or  circuit  court;  the  probate  court  and  special  courts  in 
the  more  populous  counties.  The  representative  body  trans- 
acting the  county  business,  usually  possessing  a  mixture  of 
legislative,  executive  and  judicial  functions,  also  meets  here 
at  stated  times.  In  New  England,  New  York  and  other  nor- 
thern states  these  bodies  are  made  up  of  members  elected  by 
the  towns,  and  are  called  the  Boards  of  Supervisors  in  New 
York.  In  Ohio  and  many  other  states  the  members  are  elected 
by  districts  and  the  board  is  made  up  of  a  much  smaller  num- 
ber, three  only  in  Kansas,  and  are  called  Boards  of  County 
Commissioners.  In  the  south  and  some  western  states  they 
are  chosen  in  the  same  manner,  but  the  members  are  called 
judges  and  the  body  is  styled  the  County  Court.  There  is 
much  diversity  in  the  scope  of  the  duties  and  powers  of  these 
tribunals,  which  are  almost  if  not  quite  universally  fixed  by 


UNITED  STATES  855 

the  legislature,  rather  than  by  constitutional  provision.  In 
the  East  the  laying  out  and  repairing  of  roads  and  the  con- 
struction and  maintenance  of  bridges  are  generally  under  the 
supervision  of  the  towns,  while  in  the  West  they  are  partially 
or  wholly  under  the  direction  of  the  county  boards.  The 
maintenance  of  the  courthouse  and  other  county  institutions, 
the  levying  of  county  taxes  and  the  expenditure  of  county 
money  are  under  the  direction  of  this  tribunal,  and  it  stands 
as  the  general  representative  of  county  interests.  Each  county 
elects  its  own  sheriff,  whose  principal  functions  are  to  serve 
and  execute  the  processes  of  the  courts,  of  which  he  is  the 
chief  executive  of^cer,  and  to  collect  delinquent  taxes.  The 
ofilice,  though  still  important,  does  not  rank  as  high  as  form- 
erly in  the  colonies  and  in  England.  Each  county  also  elects 
its  recorder  of  deeds,  who  records  all  instruments  affecting 
the  title  to  land  and  mortgages  on  personal  property  and 
such  others  as  the  law  may  require  to  be  recorded.  In  Con- 
necticut, and  possibly  some  other  of  the  eastern  states,  these 
records  are  kept  by  the  town  clerks  instead  of  a  county  officer. 
There  are  usually  also  a  county  treasurer,  clerk,  coroner, 
probate  judge,  superintendent  of  schools,  surveyor,  clerk 
of  the  court  and  attorney.  Other  officers  are  sometimes 
added.  The  county  organization  is  of  prime  importance  in 
the  actual  operation  of  the  governmental  system.  It  is  here 
that  the  law  is  administered,  and  that  the  juries  pass  on  the 
facts  in  civil  causes  triable  before  them,  and  on  the  merits  of 
criminal  prosecutions.  The  roads,  bridges,  local  charities  and 
improvements  of  various  kinds  are  mainly  under  county  con- 
trol. Except  in  counties  containing  large  cities,  the  conduct 
of  county  affairs  is  usually  very  closely  watched  by  the  people 
and  is  in  main  quite  satisfactory.  Great  abuses  seldom  exist 
and  when  they  do  are  soon  remedied. 

The  importance  of  the  towns  or  townships  as  municipal 
organizations  varies  greatly.  In  the  New  England  states  in 
Revolutionary  times  the  towns  were  the  political  units.  The 
people  gathered  in  their  town  meetings,  consulted,  took  such 
action  as  seemed  advisable  and  selected  their  representatives 
and  agents  to  carry  out  their  will.     This  system  did  not  pre- 


856  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vail  in  the  South,  where  the  county  was  the  unit.  At  present 
there  is  a  tendency  to  approximate  a  common  type,  with 
township  organizations  attending  to  the  repair  of  roads  and 
bridges,  the  temporary  rehef  of  the  poor  and  some  other 
special  matters.  The  most  important  function  of  the  town 
or  township  is  in  connection  with  the  elections.  There  is 
always  one  or  more  election  precincts  in  each  of  them,  and 
the  township  officers  are  usually  charged  with  the  duty  of 
providing  the  polling  places  and  making  other  necessary  ar- 
rangements for  collecting  the  votes  and  forwarding  the  re- 
turns. Each  town  has  one  or  more  justices  of  the  peace,  with 
power  to  decide  petty  causes  and  issue  warrants  for  the  arrest 
of  persons  charged  with  crime.  Within  the  towns  are  road 
and  school  districts.  The  system  of  repairing  roads  under 
the  direction  of  an  overseer  appointed  for  a  small  district,  is 
not  generally  satisfactory,  owing  to  the  unsystematic  and 
often  shiftless  manner  in  which  the  work  is  done.  Where  a 
road  poll  tax  is  required  or  property  tax  is  allowed  to  be 
worked  out,  it  often  happens  that  the  smallest  fund  is  avail- 
able for  the  districts  requiring  the  largest  expenditure,  and 
thus  the  roads  are  worked  often  to  their  injury  where  work  is 
not  needed  and  left  in  bad  condition  in  less  rich  or  populous 
districts.  The  tendency  now  is  in  the  direction  of  larger 
districts  and  a  regular  levy  for  road  purposes. 

The  most  important  of  all  the  functions  of  the  state  is  that 
connected  with  the  education  of  the  young.  The  system  of 
district  schools  is  now  substantially  universal  over  the  whole 
United  States.  The  whole  country  is  divided  into  school 
districts  of  such  convenient  size  as  will  enable  all  the  children 
in  it  to  attend  easily;  usually  two  miles  is  as  far  as  any  child 
needs  to  go  to  reach  the  school  house.  The  affairs  of  the 
district  are  determined  by  the  people  in  a  general  meeting 
at  which,  in  many  states,  women  as  well  as  men  are  now 
allowed  to  vote.  The  size  and  cost  of  school  buildings,  the 
number  of  teachers,  the  length  of  school  terms  and  other  par- 
ticulars are  generally  determined  by  the  people  at  the  annual 
district  meeting.  It  is  a  noticeable  fact,  that  in  no  other 
public  matter  is  so  much  liberality  shown,  and  the  school  tax 


UNITED  STATES  857 

imposed  on  themselves  by  the  voters  is  always  the  heaviest 
of  all  borne  by  the  people.  Comfortable  school  buildings  and 
as  good  teachers  as  the  district  can  afford  are  always  de- 
manded. This  system  of  direct  regulation  of  schools  by  the 
people  applies  only  to  rural  districts.  In  the  cities,  where 
many  teachers  are  required,  the  schools  are  in  charge  of 
boards  elected  for  that  purpose. 

In  1790  the  urban  population,  inhabiting  cities  of  8,000 
or  more,  is  given  as  only  three  and  three-tenths  per  cent 
of  the  whole.  New  York  City  alone  now  contains  more 
people  than  there  were  in  all  the  colonies  at  the  date  of  the 
adoption  of  the  constitution.  The  problem  of  municipal  gov- 
ernment was  not  then  one  of  great  concern.  It  is  now  one 
of  the  most  complex  that  confronts  the  legislator.  On  the 
farm  or  in  the  small  town  the  family  supplies  most  of  its 
wants  in  its  own  way.  For  water  wells  and  cisterns  are 
dug  or  natural  sprin'gs  and  water  courses  afford  a  supply. 
Lights  are  supplied  in  a  more  or  less  primitive  fashion,  but 
always  by  the  individual  in  his  own  way.  To  communicate 
with  his  neighbors  and  the  outside  world  he  formerly  walked 
or  drove  along  the  public  highway.  Now  he  uses  the  tele- 
phone and  rural  mail  service.  No  neighbor  cuts  off  his  light 
or  air  by  a  new^  building,  nor  is  he  usually  much  affected  by 
what  is  done  on  his  neighbor's  ground.  In  the  city  condi- 
tions are  greatly  changed.  The  individual  must  rely  on 
some  one  else  to  supply  nearly  all  his  wants.  The  universal 
tendency  of  the  city  is  to  divide  labor,  specialize  and  become 
dependent,  each  one  on  a  multitude  of  others.  Water,  light, 
heat,  conveyance  from  point  to  point,  means  of  communica- 
tion and  security  against  fire  and  floods,  must  all  be  provided 
by  some  general  agency,  public  or  private.  In  rural  com- 
munities there  are  poor  people,  but  none  with  inordinate 
wealth.  The  city  breeds  the  multi-millionaire  and  the  multi- 
tude of  paupers.  In  the  cities  are  to  be  found  the  dens  of 
the  criminals,  the  filthy  houses  of  prostitution,  the  conscience- 
less gamblers  and  swindlers  of  all  kinds.  Selfishness  and 
vice  grow  up  together,  children  of  a  common  parent,  though 
one  may  dwell  in  a  palace  and  the  other  in  a  wretched  tene- 


858  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ment.  In  contrast  with  rural  conditions  the  bulk  of  the 
property  is  owned  by  the  few  and  the  great  multitude  work 
for  wages,  live  in  rented  houses,  and  have  little  or  no  pro- 
vision made  for  a  time  of  adversity.  A  marked  character- 
istic of  the  American  city  dweller  is  that  he  strives  to  appear 
as  well  as  his  neighbor.  He  rents  a  more  expensive  house 
and  wears  dearer  clothing  than  his  income  warrants.  His 
economies  if  any  are  such  as  his  neighbor  cannot  see.  The 
tendency  of  this  mode  of  living  is  to  produce  a  constant 
strain  for  appearances,  which  results  in  duller  moral  percep- 
tions and  a  debasement  of  ideals.  The  strength  and  safety 
gained  by  self-denial  and  frank  admission  of  the  truth,  are 
sacrificed  to  a  foolish  desire  to  appear  more  prosperous  than 
he  in  fact  is.  This  class  of  people  of  necessity  are  always 
at  someone's  mercy,  and  generally  become,  if  they  do  not 
begin  as,  servants  of  others.  The  percentage  of  Americans, 
who  refuse  to  gain  independence  by  the  slow  sure  route  of 
industry  and  rigid  economy,  is  distressingly  large.  The  vain 
hope  of  some  stroke  of  fortune,  which  will  make  good  all 
that  could  be  gained  by  thrift,  keeps  multitudes  in  poverty. 
While  these  propensities  play  so  important  a  part,  the  city 
problem  would  not  be  nearly  solved  if  they  were  eliminated. 
It  must  be  conceded  that  the  satisfactory  government  of 
great  cities  still  remains  an  unsolved  problem  in  America. 
State  legislatures,  under  most  of  the  state  constitutions,  are 
vested  with  general  powers  of  legislation  for  them,  and  may 
create  such  offices  as  they  think  best  and  prescribe  the  mode 
of  filling  them.  State  legislatures,  however,  are  seldom  in 
a  position  to  judge  wisely  of  the  needs  of  a  city,  and  all 
schemes  to  govern  through  state  appointees  have  resulted  in 
gross  misgovernment  and  corruption.  It  is  fully  demon- 
strated that  the  people  will  govern  themselves  better  than  any 
agency  from  without,  but  it  is  not  demonstrated  that  they 
will  do  very  well  under  prevailing  methods  and  conditions. 
The  general  framework  of  the  city  government  is  similar  to 
that  of  all  the  other  governmental  agencies.  There  is  an  ex- 
ecutive head,  usually  called  the  mayor,  and  a  body  vested 
with   legislative   powers,   usually   termed    the   council.      This 


UNITED  STATES  8S9 

consists  sometimes  of  one  and  sometimes  of  two  chambers, 
the  very  large  cities  usually  having  an  upper  and  a  lower 
house,  while  the  smaller  generally  have  but  one.  The  mayor 
and  council  are  vested  with  power  to  enact  ordinances  for 
the  regulation  of  police  affairs  in  the  city,  and  for  the  man- 
agement of  its  property,  the  regulation  of  streets,  public 
grounds,  water  fronts,  and  other  places  to  which  the  people 
resort.  They  may  impose  penalties,  usually  limited  to  a 
small  fine  or  a  brief  term  of  confinement,  for  violation  of 
their  ordinances.  To  the  mayor  and  council  the  people  look 
for  management  of  the  supply  of  water,  light,  gas,  electricity, 
for  pavement  of  the  streets,  construction  of  bridges,  side- 
walks, sewers,  dykes,  public  buildings,  markets  and  number- 
less other  conveniences,  and  the  regulation  of  all  public  service 
corporations,  so  far  as  their  limited  powers  will  enable  them 
to  do  so.  Recently  what  is  termed  the  commission  form  of 
government  has  been  adopted  by  some  cities  under  which  a 
single  board  of  commissioners  elected  from  the  city  at  large 
exercises  all  legislative  and  administrative  functions.  In  the 
small  places  the  list  of  executive  officers  includes  the  mayor, 
marshal  or  chief  of  police,  street  commissioner,  fire  warden, 
police  judge,  clerk  and  such  other  police  officers  as  the  sit- 
uation calls  for.  In  the  large  cities,  besides  these  there  is 
a  long  list  of  officials  connected  with  each  department  of 
the  city  government.  Large  forces  are  constantly  employed 
in  the  departments  of  the  police,  streets,  parks,  sewers,  health, 
buildings,  waterworks  (where  owned  by  the  city),  and 
others  according  to  the  particular  needs  of  the  city.  Into 
each  large  city  railroads  are  built,  requiring  terminal  facili- 
ties and  privileges  of  various  kind,  and  subject  to  taxation 
as  is  other  property.  The  various  corporations,  owning  these 
or  other  great  properties,  find  it  necessary,  from  time  to  time, 
to  apply  to  the  city  for  special  privileges  of  various  kinds, 
often  of  great  value.  The  use  of  streets,  alleys  and  public 
grounds  is  often  desired  and  frequently  granted  without 
compensation.  Street  railway  companies,  desiring  to  occupy 
streets  with  their  lines,  call  on  the  council  for  franchises, 
worth  millions  to  them.     Water,   gas,   telephone,   telegraph, 


86o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

electric  light  and  power  companies  and  other  corporations  of 
many  kinds,  conducting  great  public  conveniences,  go  to  the 
council  for  permits  to  use  the  streets  and  other  public  prop- 
erty and  for  exclusive  franchises  and  privileges  of  many 
kinds.  The  necessities  of  the  public  in  a  city  call  for  heavy 
expenditures  on  streets,  parks,  sewers,  public  buildings, 
bridges,  viaducts,  police  and  sanitary  supervision.  These, 
added  to  the  other  expenses  of  the  city  government,  neces- 
sarily makes  city  taxes  high,  where  no  revenue  is  collected 
in  return  for  special  privileges.  The  people  of  cities  find  the 
same  difficulty  experienced  by  county,  state  and  national  gov- 
ernments in  their  dealings  with  great  private  corporations. 
The  public  agencies,  designed  to  supervise  and  regulate  the 
corporations,  are  in  fact  often,  if  not  usually,  supervised  and 
controlled  by  the  corporations.  The  reason  for  this  lies 
mainly  in  the  superior  qualification  of  the  agents  of  the  cor- 
porations for  dealing  with  the  special  subjects  under  con- 
sideration. Strong  personal  interests,  actively  at  work  at 
all  times,  accomplish  the  purposes  of  the  corporations.  In 
dealing  with  any  question  relating  to  the  operation  of  a 
special  branch  of  business,  like  furnishing  water,  gas,  or 
electricity,  or  operating  a  railroad  or  street  railway,  the 
company's  managers  are  reasonably  certain  to  be  much  better 
informed  as  to  the  details  of  the  business  than  the  members 
of  a  city  council,  chosen  from  men  in  the  various  occupations, 
indiscriminately,  with  no  special  knowledge  or  experience 
concerning  any  of  these  particular  matters.  City  councilmen 
are  frequently  charged  with  having  acted  corruptly  in  grant- 
ing corporate  franchises,  when  they  have  merely  been  mis- 
led through  ignorance.  Reason  would  indicate  and  experience 
proves  that  the  operations  of  great  business  corporations 
cannot  be  efficiently  supervised  or  regulated,  except  by  men 
specially  qualified  by  education  and  experience  for  the  work. 
The  idea  of  extending  the  principle  of  popular  government 
to  the  public  ownership  and  operation  of  street  railways, 
water-works,  gas  works,  telephones,  telegraphs,  railways,  coal 
mines  and  other  public  utilities,  which  are  either  natural 
monopolies  or  likely  to  be  artificially  made  such,  seems  to  be 


UNITED  STATES  86i 

gaining  favor.  Whenever  upright  pubHc  agents,  who  fully 
understand  the  business,  are  placed  in  charge  of  works  of 
this  character,  the  results  are  satisfactory,  but  city  govern- 
ments, far  more  than  those  of  any  other  political  division, 
seem  destined  to  fall  into  either  corrupt  or  inefficient  hands. 
The  reason  for  this  appears  to  be  that  less  care  is  exercised 
by  city  voters  in  the  choice  of  public  officers  than  by  the 
people  of  the  rural  districts.  This  may  fairly  be  accounted 
for  by  the  difference  in  the  circumstances  of  the  people. 
Probably  the  people  of  the  cities  are  as  intelligent  and  well 
informed  as  the  country  people,  but  they  are  more  inclined 
to  give  their  exclusive  attention  to  their  personal  affairs  and 
neglect  public  interests.  The  successful  merchant,  as  a  rule, 
eschews  politics,  because  he  has  no  time  to  spare  and  believes 
it  will  hurt  his  business  to  take  sides  in  the  election.  Busy 
men  having  large  establishments  of  other  kinds  are  inclined 
to  take  the  same  view.  These  classes  do  not  constitute  a 
large  percentage  of  the  voters.  The  wage  earners  in  a 
great  city  are  always  in  a  vast  majority.  The  concentration 
of  wealth,  which  steadily  increases  with  the  growth  of  cities, 
is  such  that  the  proportion  of  independent  property  owners 
is  small.  The  tenant  wage  earner,  who  pays  little  or  no  tax, 
feels  little  concern  about  public  expenditures  or  the  manage- 
ment of  the  city's  business.  Thus,  from  different  causes,  we 
have  two  great  classes  of  voters  indifferent  in  the  exercise  of 
their  duties  as  citizens.  The  result  is  that  a  small  class  of  men, 
who  devote  their  time  to  city  politics  and  seek  personal  gain 
from  the  results  of  the  elections,  often  control  the  affairs  of 
a  great  city  for  years.  Where  the  motives  of  the  managers 
of  opposing  political  organizations  are  the  same,  namely,  to 
gain  possession  of  the  offices  merely  for  the  profit  that  can 
be  made  out  of  them,  no  very  exalted  standard  of  public  ser- 
vice can  be  expected,  whichever  party  wins.  Improvement 
in  the  conduct  of  city  governments  and  the  elevation  of  their 
moral  tone  can  only  come  through  the  active  efforts  of  the 
best  classes  of  citizens,  involving  some  sacrifices  of  time  and 
money.  Perhaps  the  assumption  by  the  cities  of  greater 
business  interests  would  tend  to  increased  attention  on  the 
part  of  the  voters  to  the  choice  of  city  officials. 


862  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Corporations 

Notwithstanding  the  fact  that  a  very  large  part  of  all  the 
men,  women  and  even  children  of  the  United  States  are  stock- 
holders in  or  members  of  one  or  more  corporations,  there 
is  much  confusion  of  thought  as  to  the  attributes  and  use- 
fulness of  corporations.  This  doubtless  arises  from  the  great 
variety  of  functions  performed  by  different  classes  of  them. 
In  the  American  system  there  is  the  city,  a  municipal  cor- 
poration exercising  merely  public  functions,  through  the 
agency  of  officers  chosen  by  all  the  voters,  in  many  states 
including  the  women,  yet  held  to  the  same  accountability  for 
wilful  misconduct  or  negligence  connected  with  the  discharge 
of  its  functions  as  a  private  corporation.  It  combines  sub- 
stantially all  the  attributes  of  a  local  government  and  a  pri- 
vate corporation.  Then  there  are  the  counties,  townships  and 
school  districts,  termed  quasi-corporations,  with  less  corpor- 
ate responsibility  and  less  compact  and  forceful  organiza- 
tions. The  state  and  nation  are  bodies  corporate,  but  not 
usually  regarded  as  corporations.  Of  the  corporations  termed 
private  there  are  many  classes.  Formerly  in  Europe  the  most 
important  division  was  into  ecclesiastical  and  lay,  the  former 
conferring  special  privileges  on  some  church  functionary  or 
religious  body,  and  the  latter  artificial  powers  or  privileges 
for  secular  purposes.  In  the  time  of  Henry  VII  of  England 
the  ecclesiastical  corporations  were  far  more  numerous  and 
important  than  the  lay.  They  were  all  dependent  on  the  great 
Papal  organization  of  Rome,  corporate  combinations  for  busi- 
ness purposes  had  not  yet  become  numerous.  There  are  now 
in  the  United  States  a  very  great  number  of  religious  cor- 
porations with  much  diversity  in  their  functions.  Here  as 
elsewhere  the  great  Church  of  Rome  has  its  adherents,  its 
churches,  schools  and  other  property,  and  priesthood  high  and 
low.  The  governmental  forces,  however,  are  nowhere  ex- 
erted in  its  interests,  but  for  its  revenue  it  relies  entirely  on 
the  voluntary  contributions  of  its  members.  The  only  com- 
pulsion it  can  exercise  is  such  as  acts  through  the  religious 
ideas  of  the  people  and  the   force  of  church  influence  and 


UNITED  STATES  863 

association.  The  various  Protestant  church  corporations, 
modeled  more  or  less  after  the  Roman  according  to  the  views 
of  the  leaders,  also  stand  in  the  same  relation  to  the  general 
public,  without  state  support.  In  the  management  of  their 
affairs,  though  all  profess  to  be  guided  by  the  law  as  written 
in  the  Bible  and  to  believe  implicitly  in  all  its  teachings,  the 
governing  force  differs,  being  either  wholly  in  the  clergy,  as 
in  the  Roman,  in  representative  bodies,  as  the  Presbyterian, 
or  in  the  congregation.  Perhaps  the  most  potent  and  efficient 
church  organization  within  its  limited  field  of  action  is  the 
Mormon,  which  for  nearly  half  a  century  maintained  at  Salt 
Lake  City  a  remarkable  hierarchy,  which  combined  the  func- 
tions of  a  religious  organization,  a  political  government  and 
a  cooperative  business  corporation.  Though  not  granted  any* 
peculiar  charter  privileges  by  any  state  or  by  the  national 
government,  it  exercised  these  powers  by  the  consent  and 
with  the  full  support  of  the  community.  The  leaders  of  the 
church  made  up  their  own  charter,  which  became  applicable 
to  such  and  such  only  as  chose  to  join  them. 

The  American  spirit  of  liberty  finds  expression  in  the  re- 
ligious organizations,  and  the  diversity  of  individual  views 
has  led  to  a  constant  splitting  up  of  churches.  Old  religious 
dogmas  are  constantly  being  discarded,  and  moral  teachings 
and  the  spiritual  essence  of  Christianity  are  demanded  from 
the  pulpit,  rather  than  threats  of  damnation  for  heresy  and 
promises  of  safe  transit  to  a  realm  of  bliss  as  a  reward  for 
faith  in  church  dogmas.  Though  efforts  are  constantly 
made  to  unite  and  combine  the  strength  of  the  churches  to 
accomplish  common  ends,  it  is  apparent  that  church  cor- 
porations lack  cohesive  force,  and  that  the  general  tendency 
is  toward  disintegration.  The  reason  for  this  is  apparent. 
The  old  doctrines,  which  exerted  such  powerful  influence  on 
the  public,  are  no  longer  accepted  as  truth.  Heaven  is  not 
so  alluring  and  hell  has  lost  its  terrors.  In  the  churches  a 
leading  difficulty  now  experienced  is  to  get  voluntary  con- 
tributions for  the  support  of  the  ministers,  the  building,  fur- 
nishing and  maintenance  of  the  churches,  and  for  missionary 
and  other  church  purposes.     There  is  some  charitable  work 


864  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

added,  but  as  an  incident  rather  than  the  primary  object  of 
the  organization.  The  secret  of  the  success  of  the  early 
Christians  lay  in  the  brotherly  feeling  existing  among  them 
and  in  their  mutual  help.  The  remarkable  hold  of  the  Church 
of  Jesus  Christ  of  Latter-day  Saints,  as  the  Mormon  church  is 
termed,  on  its  members,  was  largely  due  to  the  advantages 
gained  by  its  cooperative  business  functions,  through  which  it 
furnished  its  people  with  a  system  of  exchange  of  products 
among  themselves  and  with  the  outside  world  without  the  use 
of  money.  It  recognized  the  fact  that  all  wealth  comes  as  the 
result  of  labor  well  applied  and  economy.  The  great  temple 
was  built  and  paid  for  by  a  people  having  no  money  to  con- 
tribute. A  system  of  checks  or  certificates,  issued  by  the 
authorities  for  labor  done  or  produce  or  materials  furnished  or 
deposited  in  the  tithing  house,  filled  the  place  of  a  medium  of 
exchange — being  redeemable  in  goods  at  the  tithing  house. 
Beyond  doubt  the  moral  teachings  of  the  clergy  from  the 
pulpits  have  a  great  educational  value.  The  early  Christians, 
while  they  fed,  lodged  and  clothed  those  who  preached  the 
new  doctrine,  did  not  maintain  a  salaried  clergy,  nor  ex- 
pensive temples  of  worship.  The  weakness  of  all  the  churches 
is  evidenced  by  their  inability  to  grapple  with  practical  diffi- 
culties and  accomplish  results.  To  call  on  church  members  for 
large  contributions  to  church  funds  on  Sunday,  to  be  made 
good  during  the  week  by  artifice  or  wrongdoing,  does  not 
tend  to  advance  moral  standards.  The  practical  problem,  of 
bringing  about  just  relations  between  the  people  in  their  every 
day  affairs,  is  one  for  which  many  of  the  clergy  have  neither 
taste  nor  capacity. 

We  have  seen  that  the  first  settlements  in  the  United  States 
were  effected  through  corporations,  chartered  by  the  kings  of 
England,  with  grants  of  full  governmental  powers,  though 
under  the  sovereignty  of  the  British  crown.  The  purpose  of 
these  charters  was  to  enlist  the  capital  and  energy  of  the 
members  of  the  corporation  in  a  new,  difficult  and  dangerous 
enterprise,  designed  to  add  strength  to  the  British  empire 
and  yield  profit  to  the  members.  The  charters  authorized 
the  corporators  to  organize  forces  in  England,  to  transport 


UNITED  STATES  865 

them  to  the  designated  parts  of  America,  take  forcible  pos- 
session of  the  country  and  make  war  on  any  who  might 
oppose  them.  The  corporations  performed  the  tasks  of  or- 
ganization in  England,  and  brought  together  the  necessary 
combination  of  money  to  furnish  and  equip  ships  and  men  to 
undertake  the  new  settlements.  After  the  settlements  were 
established  either  the  corporation  moved  to  America  and 
there  discharged  its  functions  as  the  governmental  organiza- 
tion of  the  colony,  as  in  Massachusetts,  or  went  out  of  exist- 
ence, leaving  to  the  people  in  the  colonies  more  or  less  of 
their  charter  privileges,  according  to  the  terms  of  that  affect- 
ing the  particular  colony  and  the  conduct  of  the  British 
ministry  with  reference  to  it. 

The  science  of  government  is  the  science  of  organizing 
the  whole  people  of  some  portion  of  the  earth  for  common 
purposes,  and  the  organization  of  municipal  corporations  is 
merely  a  part  of  the  governmental  work.  Private  cor|>ora- 
tions,  however,  for  the  accomplishment  of  special  purposes, 
are  formed  in  great  variety  by  the  voluntary  association  of 
individuals,  often  citizens  of  different  nations  and  residing 
at  great  distances  from  each  other.  In  Europe,  till  recent 
times,  corporate  franchises  were  granted  by  the  kings,  and 
in  England  sometimes  by  act  of  parliament,  to  particular 
persons  or  to  them  and  such  as  they  might  associate  with 
them,  as  a  special  favor.  In  the  United  States  corporate  fran- 
chises were  at  first  granted  by  special  acts,  but  the  favoritism 
necessarily  engendered  by  this  system  was  soon  perceived. 
The  practice  was  generally  discontinued  and  in  most  states 
is  now  prohibited  by  constitutional  inhibition.  Corporations 
for  almost  any  purpose  not  immoral  may  now  be  formed 
under  general  laws  in  any  state  of  the  Union.  They  are  in 
fact  formed  to  carry  on  all  kinds  of  business,  ranging  from, 
those  which  the  constitutions  guarantee  any  citizen  full  liberty 
to  conduct,  such  as  carrying  on  small  commercial,  manufac- 
turing, mining  or  agricultural  concerns,  by  systems  differing 
in  no  important  respect  from  and  with  no  greater  facilities 
than,  those  enjoyed  by  single  individuals  or  partnerships,  to 
great  railroad,  telegraph  and  mining  companies,  which  have 


866  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

many  elements  of  governmental  power  and  perform  great 
public  functions. 

Perhaps   the   classification   of   corporations   now   of   most 
practical  importance  is  into  those  for  profit,  having  a  capi- 
tal stock  on  which  dividends  are  expected,  and  those  for  so- 
cial,   charitable,    religious,    educational    and    other    purposes, 
yielding  no  profit  to  the  members.     Corporations  for  profit 
are  divided  into  those  discharging  public  functions  and  those 
merely  conducting  an  ordinary  private  business,  and  also  into 
those  distributing  their  gains  on  a  purely  capitalistic  basis 
pro  rata  on  the  capital  contributed,   and  those  distributing 
profits  on  the  basis  of  amount  of  dealings  with  the  corpora- 
tion on  which  the  profits  have  been  realized.     Insurance  cor- 
porations are  very  numerous  and  are  divided  into  the  purely 
capitalistic,  and  the  fraternal  and  cooperative,  designed  merely 
to  distribute  the  losses  of  individuals  among  many  without 
paying  profits  on  capital  stock.     These  various  classifications 
are  often  difficult  of  application,  because  of  the  great  diver- 
sity both  of  purposes  for  which  the  corporations  are  formed 
and  of  methods  of  dealing  with  their  stockholders  and  mem- 
bers.    The  great  public  service  corporations  exercise  most 
governmental  powers,   have  the  largest  capital  and  employ 
the  most  people  of  all.     The  construction  and  operation  of 
railroads  on  the  continent  of  Europe  is  generally  regarded 
as  a  purely  public  function,  and  most  of  the  railroads  there 
are  owned  and  operated  by  the  governments.     In  England 
and  the  United  States  they  are  all  owned  and  operated  by 
private  corporations  for  profit,  organized  on  a  purely  capi- 
talistic basis.     In  the  early  history  of   railroad  building  in 
America  the  construction  of   lines  of   road   was   sometimes 
undertaken  by  the  states,  but  in  no  instance  was  the  under- 
taking   financially    successful.      The    great    outlay    required 
called   for  the  combination  of  the  capital  of  many  individ- 
uals.   This  could  not  be  readily  obtained  for  untried  ventures, 
involving  so  large  an  outlay.     To  induce  the  thrifty  to  put 
their  money  into  these  enterprises,  public  contributions  were 
offered  with  the  greatest  liberality.     States,  counties,  cities, 
towns  and  villages  voted  bonds  to  be  either  exchanged  for 


.       UNITED  STATES  867 

the  stock  or  bonds  of  the  railroad  company,  or  donated  to 
it  outright,  in  consideration  of  the  construction  of  some  des- 
ignated Hne  of  road.  The  indirect  benefits  resuUing  from  the 
transportation  faciHties  furnished  by  the  road  were  generally 
regarded  as  a  full  equivalent  for  the  bonds  voted.  This  sys- 
tem of  public  subscriptions  to  the  capital  stock  of  railroad 
corporations  led  to  the  adoption  of  a  policy  by  the  companies 
of  making  large  issues  of  mortgage  bonds  to  raise  the  re- 
quisite capital,  and  to  the  distribution  of  the  capital  stock 
among  the  promoters  of  the  scheme  and  the  purchasers  of 
its  bonds  without  the  payment  of  any  money  for  the  stock. 
The  municipalities  subscribing  for  the  stock  thus  became  the 
only  paying  stockholders  and  their  stock  had  little  or  no 
market  value.  The  inordinate  profits  realized  by  the  pro- 
moters of  these  enterprises,  and  the  keen  rivalry  of  cities  and 
towns  in  their  efforts  to  bring  in  new  railroads,  early  led 
to  the  greatest  activity  in  the  organization  of  railroad  cor- 
porations and  the  construction  of  new  lines  of  road.  No 
other  country  has  so  many  miles  of  railroad  and  nowhere 
else  has  there  been  such  vigor  exhibited  in  pushing  forward 
new  enterprises.  While  the  system  followed  has  had  the 
advantages  of  rapid  development  and  a  remarkable  exhibition 
of  inventive  genius  and  engineering  skill  in  the  improve- 
ment of  rolling  stock  and  machinery  and  the  construction 
of  roads  under  all  kinds  of  difificulties;  it  has  been  attended 
with  many  and  serious  wrongs  and  inconveniences,  among 
which  are  corrupting  influences  exerted  on  all  depart- 
ments of  the  government,  unjust  treatment  of  persons  and 
localities,  frauds  upon  stockholders,  oppression  of  em- 
ployees and  patrons  of  the  road,  and  a  recklessness  of  human 
life  in  the  movement  of  trains  quite  peculiar  to  American 
railways.  In  early  days  it  was  so  vast  an  enterprise  to  build 
a  railroad  from  the  seabord  to  the  great  lakes,  that  several 
corporations  were  required  to  construct  it  in  parts.  Now 
lines  aggregating  more  than  10,000  miles  are  under  a  single 
management.  The  growth  of  railways,  which,  during  the 
period  of  most  rapid  construction,  brought  into  existence  a 
great  number  of  new  corporations,  has  now  taken  a  decided 


868  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

turn  in  the  direction  of  consolidation,  not  only  of  connecting 
but  also  of  competing  lines.  The  necessity  for  separate 
charters,  in  each  state  where  a  new  line  was  to  be  con- 
structed, in  order  to  exercise  the  right  of  eminent  domain 
and  condemn  the  ground  required  for  the  uses  of  the  road, 
led  to  the  taking  out  of  a  number  of  charters  for  each  long 
line  of  road.  Most  states  now  authorize  the  consolidation  of 
connecting  lines,  built  under  charters  from  other  states,  and 
the  manifold  advantages  of  a  single  management,  covering 
a  large  system  of  roads,  have  led  to  consolidation  upon  con- 
solidation. To  the  corporation  there  are  the  great  economies 
of  reduced  cost  of  management  and  increased  business.  To 
the  public  there  is  the  advantage  of  transportation  for  long 
distances  under  a  contract  with  a  single  company,  without 
the  vexations  attending  transfers  from  one  line  to  another. 
The  public  like  to  ride  on  a  through  train  from  starting  point 
to  destination,  and  railroad  managers  like  to  supply  such 
trains.  All  interests,  public  and  private,  can  be  better  served 
by  long  lines  with  many  branches,  than  by  separate  concerns. 
Against  these  manifest  advantages  stand  the  fear  and  men- 
ace of  too  much  power  to  aid  or  crush  the  individual  or 
locality  and  to  influence  public  officials.  The  logic  of  con- 
solidation has  been  more  fully  exhibited  with  reference  to 
the  telegraph  than  the  railroads.  Whereas  in  the  early 
history  of  the  telegraph  there  were  many  separate  companies, 
now  a  single  corporation  has  a  practically  complete  network 
extending  all  over  the  United  States  and  much  of  Canada 
with  cable  lines  to  Europe  and  the  West  Indies.  Telegraph- 
ing, so  nearly  allied  to  the  postal  system  in  the  service  it 
performs,  is  now  a  governmental  function  in  all  the  great 
European  countries,  including  the  British  Isles.  It  is  a  nat- 
ural monopoly,  requiring  a  single  management  for  efficiency. 
The  same  principles  apply  to  the  telephone,  which,  at  first 
used  only  in  limited  areas  for  short  distances,  has  now  de- 
veloped into  a  vast  network  connecting  distant  cities,  towns 
and  country  homes.  Waterworks  necessarily  have  a  limited 
field  of  operation,  but  like  the  railroad,  telegraph  and  tele- 
phone, require  the  use  of  the  public  streets  and  the  exercise 


UNITED  STATES  869 

of  the  power  of  eminent  domain  for  their  estabUshment,  and 
are  natural  monopoHes  for  the  district  served,  admitting  no 
advantage  from  competition.  Gas,  electric  light  and  street 
railway  companies  discharge  functions  of  substantially  the 
same  character.  All  these  are  public  service  corporations, 
exercising  powers  strictly  governmental  in  character  within 
long  established  principles.  The  lands  on  which  their  works 
are  constructed  can  and  are  forcibly  taken  from  private  own- 
ers against  their  will,  because  public  needs  require  them.  But 
the  use  of  the  right  of  eminent  domain  in  the  construction 
of  their  works  is  neither  the  only  nor  the  greatest  govern- 
mental function  exercised  by  these  corporations.  The  rail- 
way companies  own  the  great  highways  of  the  country  ovfer 
which  its  vast  commerce  passes.  They  construct  and  main- 
tain the  roadway,  and  generally  the  vehicles  used  on  it.  No 
one  can  ride  or  transport  his  property  over  it  without  their 
aid,  nor  except  on  the  terms  they  impose.  In  countries  of  a 
low  order  of  civilization  the  public  highways,  and  often  the 
rivers,  are  held  as  the  property  of  some  ruler  or  petty  lord, 
and  tribute  is  extorted  at  his  pleasure  from  all  who  pass 
along  them.  The  system  followed  in  the  United  States  by 
the  railroad  corporations  was  to  charge  passengers  and  ship- 
pers such  rates  as  in  the  judgment  of  the  railroad  officials 
will  produce  the  largest  net  revenue.  Attempts  at  direct 
legislative  control,  to  make  charges  reasonable  and  prevent 
discriminations  for  the  enrichment  of  a  few  and  the  impover- 
ishment of  the  many,  have  been  made  from  time  to  time,  but 
without  satisfactory  results.  Most  members  of  most  legis- 
latures are  ignorant  of  the  facts  and  in  no  position  to  make 
rules  which  will  work  well  in  practice.  Most  bills  of  this 
character  fail  to  pass,  mainly  because  members  recognize 
their  own  unfitness  to  act  on  the  subject,  and  in  a  less  degree 
from  the  corrupting  influences  exerted  by  the  railroad  lobby. 
Such  bills  as  do  pass  are  mostly  nullified  by  the  courts,^  es- 
pecially of  the  United  States,  which  in  determining  the  reason- 
ableness of  such  legislation  have  assumed  legislative  functions. 
Regulation  of  rates  and  operation  through  the  Interstate 
Commerce  Commission  and  similar  state  commissions  is  pro- 
ducing more  satisfactory  results. 


870  EVOLUTION  OF  GOVERN'MENTS  AND  LAWS 

The  law,  which  fixed  the  terms  on  which  the  citizen  might 
travel  over  this  class  of  highways  or  transport  his  property 
to  or  from  his  market,  was  made  by  or  under  the  direction 
of  the  board  of  directors  of  the  railroad  used.  Now  these 
rates  are  subjected  to  revision  to  some  extent  by  the 
commissions. 

Still  another  governmental  function,  reaching  in  some  in- 
stances even  farther  than  any  named,  is  that  of  determining 
where  towns  may  be  built  and  where  not;  stimulating  the 
activities  of  favored  localities  and  destroying  towns  already 
built.  Small  business  centers,  little  towns,  are  built  where- 
eyer  the  railroad  company  establishes  a  depot.  Considerable 
towns  grow  up  at  its  division  points  and  around  its  shops. 
A  change  in  the  location  of  one  of  these  generally  means 
financial  ruin  to  many  in  the  deserted  town,  and  greatly  in- 
creased activity  at  the  new  point.  Neither  state  nor  nation 
have  ever  attempted  any  check  on  such  changes,  or  any  re- 
quirement of  compensation  to  injured  parties.  There  are 
hundreds  of  towns  scattered  throughout  the  United  States, 
which  are  mainly  dependent  on  some  one  railroad  company 
for  the  employment  of  a  large  part  of  their  people.  When- 
ever, such  a  change  is  made  as  to  force  its  employees  to  reside 
•elsewhere,  residences  must  be  abandoned  and  business  prop- 
'Crty  rendered  valueless. 

In  its  dealings  with  its  vast  army  of  employees  it  may  be 
said  that  the  railroad  corporation  merely  stands  in  the  same 
position  as  any  other  employer,  but  this  is  only  partially  true. 
In  many  places  the  railroad  company  has  a  monopoly  of  the 
labor  market  and  is  therefore  in  a  position  to  fix  prices.  The 
organization  of  the  different  classes  of  railway  employees  into 
unions  has  given  them  the  added  strength  which  organiza- 
tion and  combined  effort  always  bring.  This  system  however 
is  attended  with  its  disadvantages  to  both  parties  and  also  to 
the  public.  Whenever  there  is  an  open  breach  between  the 
company  and  the  men  and  a  strike  follows,  the  business  of 
the  company  is  paralyzed,  the  men  earn  no  wages,  the  com- 
pany gets  no  profits,  and  the  activities  of  the  public  depend- 
ent on  it  cease  with  the  attendant  loss  of  all  that  might  have 


UNITED  STATES  871 

been  gained  if  no  disturbance  had  occurred.  Whatever 
causes  enforced  idleness  results  in  a  loss  to  the  public  equal 
to  all  that  would  have  been  produced  and  performed  if  ac- 
tivities had  continued  normally.  Something  of  the  same 
principles  apply  to  all  the  other  public  service  corporations, 
but  the  railroads  are  of  overshadowing  importance,  and  the 
correction  of  the  evils  connected  with  their  operations  are 
still  far  from  a  satisfactory  solution.  No  other  question  con- 
nected with  popular  rights,  now  under  consideration  by  the 
American  people,  compares  in  urgency  and  importance  with 
that  of  the  proper  mode  of  conducting  and  regulating  the 
businesses  now  under  control  of  public  service  corporations. 
Banking  corporations  occupy  a  very  important  place  in  the 
business  of  the  country.  National  banks,  authorized  to  issue 
bills  designed  to  circulate  as  money  and  the  payment  of  which 
is  guaranteed  by  the  United  States,  discharge  a  strictly  gov- 
ernmental function  and  enjoy  the  special  privilege  of  issuing 
and  drawing  interest  on  a  limited  amount  of  credit  money. 
Ordinary  commercial  banks  organized  under  state  laws, 
which  receive  deposits,  loan  money  and  buy  and  sell  exchange 
and  securities,  discharge  an  important  function,  intermediate 
in  character  between  the  public  and  private.  They  are  now 
generally  under  state  supervision  through  a  state  commis- 
sioner, who  inspects  their  books  and  securities  and  compels 
compliance  with  the  law.  The  ordinary  bank  is  organized  by 
the  people  of  the  town  in  which  it  is  located,  who  subscribe 
for  its  stock  and  name  the  board  of  directors,  which  employs 
a  cashier  and  whatever  other  agents  the  business  may  require. 
It  is  a  useful  agency,  by  which  the  money  in  circulation  is 
made  to  perform  more  service  and  to  effect  many  more  ex- 
changes and  payments  than  if  left  scattered  in  the  pockets 
of  the  depositors.  It  also  supplements  the  currency  by  the 
use  of  accounts,  checks  and  drafts,  which  pass  from  one 
customer  to  another  and  effect  payments  by  charge  and  credit 
on  the  books  without  the  actual  use  of  any  money.  So  long 
as  confidence  in  the  solvency  of  the  bank  is  maintained, 
checks  drawn  by  depositors  against  their  accounts  answer  all 
the  purposes  of  money  to  those  who  merely  desire  to  increase 
the  balance  of  their  credits  in  the  bank. 


872  EVOLUTION  OF  GOVERN'MENTS  AND  LAWS 

No  subject  connected  with  state  and  national  legislation  is 
of  more  importance  than  that  of  guarding  against  the  recur- 
rence of  financial  panics.  Congress  has  recently  provided  for 
a  system  of  reserve  banks,  designed  to  combine  the  strength 
of  many,  and  provide  extra  issues  of  currency  to  meet  emer- 
gencies. Some  states  provide  for  a  state  guarantee  of  deposits 
based  on  a  reserve  fund  accumulated  from  contributions  made 
by  the  banks.  It  is  too  early  to  speak  confidently  of  the  perma- 
nent value  of  these  expedients,  but  they  appear  to  be  useful. 

The  insurance  of  lives,  limbs  and  property  has  developed  a 
greater  variety  of  corporations  than  any  other  branch  of 
business.  The  banks  and  the  great  public  service  corpora- 
tions are  mostly  purely  capitalistic  organizations,  in  which 
representation  is  based  on  the  amount  of  stock  held. 

The  insurance  corporations  present  all  forms,  from  the 
strictly  capitalistic  to  the  purely  mutual  and  cooperative.  The 
business  of  life  insurance  has  developed  the  largest  aggrega- 
tions of  capital,  single  concerns  now  reporting  hundreds  of 
millions  of  dollars  in  assets.  Few  if  any  of  these  companies 
profess  to  be  purely  capitalistic.  Nearly  all  promise  to  divide 
net  earnings  among  policyholders.  The  great  concerns  pay 
high  salaries,  and  often  still  higher  compensations  in  the  way 
of  commissions,  to  their  officers  and  agents.  The  manage- 
ment falls  into  the  hands  of  a  board  of  directors,  who  usually 
find  it  easy  to  perpetuate  their  authority,  no  matter  how 
liberal  they  may  be  in  fixing  salaries  for  themselves  and  their 
friends.  They  alone  keep  in  touch  with  the  members  of  the 
company  and  know  their  names  and  addresses,  and  it  is  usu- 
ally easy  for  them  to  gather  proxies  enough  to  reelect  them- 
selves at  each  annual  meeting.  The  receipts  from  premiums 
on  new  policies  are  more  than  sufficient  to  pay  losses  under 
old  ones,  and  the  business  and  assets  continue  to  grow  without 
the  company  being  subjected  to  any  call  which  really  tests  its 
solvency.  At  the  other  end  of  the  line  are  what  are  termed 
the  fraternal  companies,  which  in  the  simplest  form  merely 
call  on  each  member  of  the  company,  or  of  the  class  of  policy 
holders  to  which  the  deceased  member  belonged,  for  a  stated 
contribution  to  be  paid  to  the  beneficiary.     A  small  sum  is 


UNITED  STATES  873 

collected  from  each  member  to  pay  current  expenses.  There 
is  no  capital  stock  and  no  accumulation  of  funds.  Most  fra- 
ternal orders  now  accumulate  funds  from  which  losses  can 
be  paid  promptly,  without  waiting  to  collect  from  members, 
and  fix  a  regular  rate  of  yearly  payments  sufficient  to  cover 
losses  and  accumulate  an  adequate  reserve  fund.  Life  in- 
surance finds  great  favor  with  the  American  public,  because 
it  relieves  the  distress  of  families  suffering  from  the  loss  of 
their  bread  winners.  The  early  system  was  to  merely  pay  a 
lump  sum,  specified  in  the  policy,  in  case  of  death,  and  this  is 
still  the  prevailing  one,  but  a  considerable  sum  in  cash,  paid 
to  persons  unaccustomed  to  the  investment  of  money,  usually 
results  in  the  loss  of  much  of  it  through  unwise  investments. 
Policies  of  insurance  are  now  issued,  which  provide  for  the 
payment  of  annuities  for  life  or  a  specified  period  of  years. 
So  large  a  part  of  the  people  invest  in  insurance,  and  the 
principle  of  providing  against  the  day  of  sorrow  and  calamity 
grows  in  favor  so  steadily  in  enlightened  states,  that  it  would 
now  seem  to  be  a  legitimate  function  of  the  state.  All  the 
states  have  insurance  departments  to  inspect  and  regulate  the 
corporations.  The  principle  of  insurance  being  merely  the 
distribution  of  an  individual  loss  among  many,  so  that  no  one 
bears  a  heavy  burden,  is  so  simple  that  it  could  easily  be  car- 
ried out  through  a  public  insurance  office.  The  business  of 
fire  insurance  is  also  divided  between  capitalistic  corporations 
and  mutual  or  cooperative  companies,  the  leading  distinction 
between  the  two  being  that  the  former  is  organized  with  a 
capital  stock  and  sells  its  policies  at  fixed  rates,  while  the 
latter  undertakes  to  apportion  losses  among  its  members, 
adding  only  the  actual  cost  of  conducting  the  business.  The 
great  life  insurance  corporations  have  become  among  the 
greatest  moneyed  institutions  in  the  country,  and  the  organi- 
zation of  new  corporations,  which  have  adopted  some  new 
feature  or  made  some  modification  of  an  old  one,  goes  steadily 
on.  Many  insurance  companies  combine  an  organization  for 
social  purposes  with  the  business  of  life  insurance,  and  many 
of  these  also  add  other  charitable  features,  for  the  relief  of 
the  sick,  the  burial  of  the  dead  and  the  care  of  widows  and 


874  EVOLUTION  OF  GOVERN'MENTS  AND  LAWS 

orphans.  In  nothing  is  the  genius  of  the  American  people  for 
organization  and  innovation  more  clearly  exhibited  than  in 
its  multitude  of  insurance  and  fraternal  companies.  The 
tendency  in  these  organizations  seems  to  be  in  the  direction 
of  complexity  and  diversity,  rather  than  simplicity  according 
to  some  standard. 

The  business  of  manufacturing  in  most  of  its  branches  is 
now  mainly  in  the  hands  of  corporations.  These  range  in 
size  and  importance  all  the  way  from  small  concerns  owned 
by  a  very  few  persons,  with  only  a  few  hundreds  of  dollars 
of  capital,  to  the  great  steel  corporation  with  its  billion  dollar 
capitalization.  They  may  be  merely  small  competing  com- 
panies or  vast  monopolies.  Mining  also  is  now  done  almost 
wholly  by  corporations,  ranging  from  the  little  concern,  oper- 
ating a  particular  mine,  to  the  Standard  Oil  Company  which 
controls  a  large  part  of  the  world's  supply  of  mineral  oil. 
Commercial  corporations  in  endless  variety  also  exist,  rang- 
ing from  the  cooperative  country  store  to  the  so-called  trusts, 
formed  to  monopolize  one  or  more  products. 

Besides  these  various  classes  of  corporations,  designed  to 
benefit  their  members  in  some  material  way,  there  are  the 
charitable,  social  and  educational  ones,  from  which  the  con- 
tributors hope  for  no  personal  gain  but  seek  to  do  good  to 
others,  through  the  maintenance  of  hospitals,  asylums,  clubs, 
schools,  libraries,  reading  rooms,  and  other  conveniences. 
The  leading  part  now  played  in  all  the  business  of  the  country 
by  corporations,  the  marked  tendency  toward  great  combina- 
tions and  consolidations,  and  the  inability  of  the  state  and 
national  authorities  to  curb  them,  have  led  to  much  strong 
denunciation  of  corporations  indiscriminately,  and  to  a  feeling 
of  distrust  and  intense  hostility  in  many  quarters.  The  great 
corporate  aggregations  are  now  engaged,  either  in  transpor- 
tation, manufacturing,  trade,  insurance,  banking  or  in  the 
management  of  public  utilities.  The  agricultural  population, 
the  wage  earners,  the  professional  men  and  those  in  miscel- 
laneous callings,  are  not  organized  into  strong,  compact 
corporations,  designed  to  further  their  interests.  As  govern- 
mental organizations  seem  indispensable  to  the  security  of  the 


UNITED  STATES  875 

individual  and  the  maintenance  of  peace  at  home  and  abroad, 
so  business  orgnization  is  necessary  to  secure  to  the  individual 
just  returns  for  his  work. 

The  wage  earners  in  certain  Hues  have  achieved  remarkable 
success  in  the  maintenance  of  labor  organizations,  but  while 
some  of  these  take  the  form  of  corporations,  they  are  not  held 
together  by  any  strong  tie.  Common  interests  and  sympathy 
with  each  other  constitute  practically  the  only  bond.  The 
strength  of  the  organization  always  depends  on  the  complete- 
ness with  which  all  the  laborers  in  a  particular  line  are  bound 
together,  so  that  all  will  act  in  concert.  A  single  laborer,  in 
dealing  with  a  great  corporation,  can  do  no  more  than  accept 
the  company's  terms  of  employment.  All  the  employees  of 
such  a  corporation,  acting  through  their  representatives,  can 
secure  such  terms  as  general  business  conditions  warrant. 
There  are  serious  objections  however  to  the  general  system  of 
a  few  capitalists  controlling  great  properties  dealing  with  an 
army  of  laborers  through  their  representatives.  It  quite  fre- 
quently happens  that  one  side  or  the  other  or  both  become 
unreasonable  and  an  open  breach  follows,  causing  a  cessation 
of  work  and  the  interruption,  not  only  of  the  business  of  the 
corporation,  but  of  all  the  public  dependent  on  its  operations. 
Sometimes  a  strike  is  followed  by  attempts  to  use  force,  by 
blows  and  bloodshed.  It  always  entails  heavy  loss  on  the 
laborers,  and  usually  on  the  company  and  the  outside  public. 
These  conflicts  are  always  destructive  in  character.  Arbitra- 
tion is  one  of  the  remedies  proposed,  but  there  is  great  diffi- 
culty in  securing  an  impartial  and  competent  tribunal  to  de- 
cide the  issue.  The  question  as  to  the  rate  of  wages  which 
ought  to  be  paid  is  not  susceptible  of  a  definite  answer,  capa- 
ble of  mathematical  demonstration.  The  revenues  of  a  cor-, 
poration  fluctuate,  and  the  necessary  outlays  increase  and 
diminish.  What  percentage  of  gross  revenues  ought  to  go  to 
labor  and  what  to  capital,  and  what  is  a  fair  return  on  in- 
vested capital,  are  matters  on  which  the  minds  of  men  differ 
widely.  If  the  capitalist  as  a  separate  factor  could  be  elimi- 
nated and  the  stock  of  the  corporation  all  be  held  by  the 
employees,  this  particular  trouble  would  be  obviated,  but  the 


876  EVOLUTION  OF  GOVERN'MENTS  AND  LAWS 

questions  between  the  several  employees  as.  to  their  respective 
rat:es  of  compensation,  and  with  the  general  public  as  to  rates 
of  charges  to  them,  would  still  remain.  Even  when  this  idea 
is  carried  to  its  extreme  limit,  so  that  the  property  of  a  cor- 
ppration  is  owned  by  all  the  people  who  are  in  any  manner 
interested  in  its  business  operations,  the  questions  as  to  rates 
of  compensation  for  services  still  remains.  The  cooperative 
corporations,  the  Rochdale  stores  and  similar  organizations, 
seek  to  solve  the  problem  of  establishing  more  just  relations 
between  all  parties  concerned  by  limiting  profits  on  capital, 
establishing  schedules  of  wages,  promoting  laborers  and  em- 
ployees solely  on  a  basis  of  merit,  and  returning  to  customers 
all  excess  of  profits  over  the  expenses  and  percentage  allowed 
on  the  capital.  The  great  fortunes,  now  such  a  marked  feature 
in  the  United  States,  are  mostly  made  in  some  manner  from 
corporations.  The  disorganized  mass  of  agricultural,  wage 
earning  and  professional  people,  are  at  all  times  at  a  disad- 
vantage in  their  dealings  with  strong  combinations.  They  pay 
more  than  a  just  compensation  for  the  services,  and  excessive 
profits  on  the  wares  of  the  corporation,  and  where  they  sell 
their  products  to  it  they  get  less  than  the  market  warrants. 

The  subject  of  business  organization  and  combination  is 
the  leading  one  before  the  American  public.  As  we  have 
seen,  the  political  system  so  far  as  the  general  structure  and 
the  leading  principles  of  government  are  concerned,  appears 
to  be  settled,  but  the  question  of  efficiency  in  business  organi- 
zation and  just  relations  and  fair  dealings  between  citizens 
in  their  every  day  life  is  as  far  from  a  satisfactory  solution 
as  ever.  In  considering  the  principles  governing  the  purposes 
of  corporations  there  are  two  things  mainly  to  be  regarded, 
efficiency  and  justice. 

For  efficiency  in  carrying  forward  a  great  enterprise,  in- 
volving the  accumulation  and  use  of  large  capital  and  the  em- 
ployment of  a  great  number  of  men,  it  is  evident  that  the 
capitalistic  system  is  the  most  vigorous  in  the  existing  state 
of  popular  education  and  public  opinion.  Combinations  of 
accumulated  capital  for  such  a  purpose  can  be  much  more 
easily   formed  than  combinations  of  the  necessary  laborers 


UNITED  STATES  877 

to  do  the  work  on  their  own  account.  Take  the  case  of  the 
construction  of  a  railroad,  a  few  great  capitaHsts,  or  even  a 
single  one,  can  contribute  the  necessary  money  and  through 
agents  employ  the  required  number  of  laborers  and  purchase 
the  necessary  materials  to  build  it.  There  is  little  danger  of 
divided  counsel.  When  once  it  has  been  determined  that  the 
project  shall  be  carried  out,  it  moves  steadily  forward. 
Where  bonds  and  stock  are  sold  on  the  market  to  raise  the 
money,  the  projectors  still  direct  the  operations,  and  if  the 
project  commends  itself  to  smaller  investors,  little  difficulty  is 
experienced  in  accumulating  funds  as  fast  as  needed  to  pay 
the  laborers  and  buy  the  materials.  After  the  road  is  built 
its  business  interests  are  to  be  considered.  The  board  of 
directors  of  a  purely  capitalistic  corporation  is  free  to  employ 
or  discharge  whomever  it  pleases.  The  selection  of  efficient 
employees  is  at  the  same  time  the  most  necessary  and  the  most 
difficult  thing  required  to  insure  successful  management.  In- 
tegrity, capacity,  industry,  and  fidelity  are  demanded  of  every 
man  who  enters  the  service.  The  stockholders  have  first  to 
choose  a  competent  board  of  directors,  and  these  have  to 
outline  the  general  policy  of  the  company  and  employ  effi- 
cient agents  and  managers  to  carry  it  out.  If  a  corporation 
with  the  requisite  capital  and  a  sound  purpose  fails,  it  usu- 
ally does  so  because  of  the  dishonesty  or  inefficiency  of  its 
managers.  Strictly  first  class  men  to  conduct  any  enterprise 
are  often  hard  to  find,  but  it  does  not  follow  that  they  always 
or  usually  demand  inordinate  compensation.  Great  numbers 
of  corporations,  large  and  small,  go  to  pieces  year  by  year 
as  a  result  of  weakness  at  the  head.  The  purely  capitalistic 
corporation  usually  receives  the  watchful  care  of  its  principal 
stockholders,  and  through  their  vigilance  is  protected  from 
the  dishonesty  and  inefficiency  of  employees,  but  on  the  other 
hand  this  class  of  corporations  stands  more  in  a  position  of 
antagonism  to  its  employees  than  the  cooperative  ones,  and 
therefore  requires  greater  vigilance  in  their  supervision. 

When  the  railroad  is  built  it  is  found  that  its  business  may 
be  greatly  increased  by  extending  the  line  from  one  or  both 
ends  and  by  branches  reaching  out  into  country  that  can  be 


878  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

made  tributary.  This  may  be  effected  by  consolidating  with 
lines  already  built,  or  by  the  construction  of  new  ones.  Con- 
solidation is  far  more  economical  than  the  construction  of 
competing  lines.  It  is  usually  advantageous  to  the  corpora- 
tion on  the  score  of  economy,  and  to  the  public  on  that  of 
efficiency  of  service.  The  purely  capitalistic  corporation,, 
which  needs  to  consult  only  a  limited  number  of  stockholders,, 
can  effect  these  combinations  far  more  easily  and  readily  than 
one  organized  along  other  lines,  where  more  people  with 
smaller  interests  must  be  consulted. 

Great  combinations  in  manufacturing  and  commercial  en- 
terprises, when  carried  to  the  point  of  a  monopoly  of  a 
particular  line  of  business,  often  bring  great  advantage,  both 
from  the  reduction  of  operating  expenses  and  from  increased 
margins  of  profit  on  the  articles  produced  or  dealt  in.  Below 
this  point  the  economies  are  often  sufficient  to  give  large 
gains.  The  purely  capitalistic  corporation  requires  of  its  em- 
ployees merely  that  they  understand  all  matters  connected 
with  their  particular  duties  and  perform  the  tasks  assigned 
them.  The  compact  between  employer  and  employee  calls 
for  service  on  one  side  and  wages  on  the  other,  and  may 
generally  be  severed  by  either  at  any  time.  The  cooperative 
organization  has  some  points  of  efficiency  which  are  superior 
to  the  capitalistic.  It  has  the  active  support  of  more  people 
and,  when  merely  designed  to  transact  a  particular  branch  of 
business  for  its  members  at  the  cost  of  the  service,  it  elimi- 
nates much  or  all  of  the  expense  caused  by  competition.  The 
weakness  of  the  cooperative  concern  generally  lies  in  scant 
capital,  lack  of  a  well  digested  plan  of  operations,  understood 
by  the  members,  and  a  disposition  to  distribute  profits,  rather 
than  use  them  in  extending  the  enterprise.  For  efficiency  a 
corporation  must  have  the  requisite  capital,  no  matter  what 
may  be  the  principles  of  its  organization. 

The  next  consideration  is  the  justice  of  the  system.  It  is 
in  this  particular  that  the  great  capitalistic  corporations  are 
most  open  to  criticism.  The  attacks  so  commonly  made 
against  them  because  of  their  vast  properties,  incomes,  and 
power,  and  their  tendencies  to  grow,  combine  and  consolidate, 


UNITED  STATES  879 

would  be  groundless,  if  all  these  elements  of  strength  were 
justly  used.  The  fundamental  objection  to  the  ordinary  cap- 
italistic corporation  is,  that  its  sole  purpose  is  financial  gain, 
and  that  in  business  it  has  a  code  of  ethics  corresponding  to 
that  of  the  king,  who  uses  his  army  to  extend  his  dominions. 
Among  the  many  unjust  and  immoral  operations  connected 
with  these  organizations  may  be  noted  the  manipulation  of 
and  gambling  in  their  stocks.  The  vast  fortunes  thus  ac- 
quired are  not  products  of  earnings,  carefully  saved  and  ap- 
plied to  the  development  of  new  enterprises.  The  moral 
tone  of  the  management  of  great  corporations  is  low  in  the 
particular  that  its  officials  and  agents  are  often  required  to 
seize  every  advantage  and  yield  nothing  except  where  the 
company  is  legally  bound.  Officials  are  not  always  authorized 
to  deal  justly  and  fairly  with  the  public,  but  are  sometimes 
bound  by  rigid  rules  to  yield  no  advantage  gained.  Doubtful 
claims  against  the  company  are  rejected  and  meritorious  ones 
of  certain  classes  habitually  scaled  down  under  threat  of 
litigation.  In  the  conduct  of  their  business,  such  of  the  great 
corporations  as  enjoy  monopolies,  like  the  railroad  corpora- 
tions and  other  public  service  companies,  and  the  great  manu- 
facturing and  commercial  corporations  which  have  achieved 
a  monopoly  of  some  line  of  business,  may  and  often  do,  fix 
prices  and  charges  at  such  rate  as,  in  their  judgment,  will 
yield  the  largest  net  return,  without  regard  to  the  rights  of 
the  public. 

These  immoralities  seem  to  be  inherent  in  monopolies.  Po- 
litical power,  monopolized  by  a  king,  has  always  surrounded 
him  with  favorites  without  merit,  whom  he  caused  to  be- 
come enriched  at  the  cost  of  his  subjects.  The  efficient 
remedy  for  the  evils  of  monopoly  would  seem  to  be  to  elimi- 
nate the  monopolist,  let  the  public,  or  the  portion  of  it  inter- 
ested, condemn  and  pay  for  the  physical  property,  and  employ 
and  pay  public  servants  for  the  services  required  in  conduct- 
ing the  business.  The  despotic  government  has  a  king,  to 
despoil  his  subjects  in  the  interest  of  himself  and  favorites, 
and  to  lead  his  followers  into  foreign  lands  and  kill,  destroy 
and  rob  the  people  there.     The  advanced  idea  of  government 


88o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

is  that  it  is  a  public  agency  to  do  for  the  people  those  ser- 
vices, required  by  the  general  public,  which  they  cannot  do 
for  themselves  separately.  The  corporations,  now  as  in  the 
first  settlement  of  the  country,  are  experimenters,  preliminary 
organizers  and  promoters,  who  explore  and  formulate,  and 
by  their  successes  educate  the  people  into  new  ways. 

Perhaps  the  most  grave  charge  of  immorality  in  the  great 
capitalistic  corporations  remains  yet  to  be  made.  It  is  their 
corrupting  influence  on  all  departments  of  the  government. 
Congress  and  the  legislatures  are  never  free  from  their  emis- 
saries. Corrupt  members  are  hired  to  do  their  work,  and 
weak  ones  are  tempted  to  vote  in  their  interests.  Executive 
officers,  charged  with  any  discretionary  duties  affecting  their 
interests,  are  tempted  in  the  same  manner.  The  corrupt  lob- 
byist of  the  great  corporation  is  always  a  man  of  intelligence 
and  culture,  and  usually  one  who  in  private  business  would 
have  been  a  fairly  honest  man.  The  immoral  purpose  and 
spirit  of  his  employer  corrupts  him  and  makes  him  a  bribe 
giver.  Most  subtle  and  dangerous  of  all  the  corrupting  in- 
fluences, are  those  with  which  the  courts  are  surrounded.  The 
representatives  of  the  most  powerful  corporations  always 
take  an  active  part  in  the  selection  of  judges,  whether  elected 
or  appointed,  but  their  influence  is  far  more  potent  in  gaining 
appointments  of  favorites  than  election  of  them.  When 
elected  the  judges  are  extended  all  manner  of  courtesies  by 
the  officials,  free  passes,  franks,  special  cars  and  numerous 
other  accommodations  appreciated  by  the  recipients,  but  not 
in  the  form  of  gross  and  palpable  bribes.  The  careful  culti- 
vation of  the  acquaintance  of  the  judges  and  the  observance 
of  their  weaknesses  and  leanings  perhaps  is  not  open  to  cen- 
sure, but  is  found  profitable  by  them.  The  judge,  like  other 
men,  generally  likes  good  living  and  a  good  income.  They 
are  always  ready  to  propose  a  banquet  with  him  as  an  honored 
guest,  or  an  excursion  at  the  company's  expense.  But  they 
like  to  do  more.  Whenever  there  is  a  chance  to  raise  his 
salary  out  of  the  public  funds,  they  are  on  hand  to  urge  it. 
Corporations  enjoying  unmerited  privileges  and  inordinate 
revenues  feel  safer  in  court  before  an  overpaid  judge.     It 


UNITED  STATES  88i 

puts  him  to  that  extent  in  their  class  and  in  sympathy  with 
them.  So  we  find  the  salaries  of  the  judges  constantly  raised 
as  they  exhibit  more  and  more  strongly  their  leanings  to 
arbitrarily  uphold  the  unjust  privileges  of  the  monopolies. 
The  same  system  has  prevailed  in  England  from  an  early 
day.  The  judges  there,  who  are  relied  on  to  enforce  the 
privileges  of  the  aristocracy,  are  paid  inordinate  salaries,  out 
of  all  proportion  to  the  value  of  their  services.  Under  these 
circumstances  they  unhesitatingly  enforce  unmerited  privi- 
leges in  the  name  of  law. 

The  injustice  wrought  by  corporations  lies  in  the  taking  or 
withholding  from  one  or  many  of  that  which  is  justly  their 
due  and  conferring  it  on  one  or  more  others  to  whom  it  is 
not  due.  There  are  two  principal  classes  of  recipients  of  the 
revenues  of  a  corporation,  the  employees,  high  and  low,  and 
the  stockholders.  Probably  the  most  glaring  abuses  in  the 
payment  of  salaries  are  connected  with  the  great  life  insurance 
companies,  which  have  no  watchful  stockholders  to  change 
directors  and  compel  a  reduction  of  salaries.  The  abuses  con- 
nected with  some  of  these  corporations  are  very  gross,  the 
only  practical  limit  seeming  to  be  the  greed  of  the  managers 
themselves.  Some  of  the  great  railway  corporations  pay  a 
few  quite  high  salaries,  but  the  general  rule  with  reference  to 
the  salaries  of  the  officers  of  corporations  is  that  they  are 
not  grossly  excessive.  The  other  employees  usually  earn  all 
or  more  than  they  get.  The  bulk  of  the  excessive  gains  goes 
to  the  stockholders.  While  efforts  are  constantly  made  to 
correct  the  evils  and  injustices  mentioned  by  legislation,  an- 
other method  is  being  evolved  which  may  in  time  accomplish 
the  result.  This  is  merely  the  organization  of  corporations 
to  do  the  business  now  transacted  by  the  objectionable  ones, 
but  on  just  principles.  The  rules  governing  the  operations 
of  a  corporation  are  made  by  its  directors  and  stockholders 
and  become  its  laws.  If  these  are  just  to  all  concerned  the 
desired  end  is  accomplished.  The  fraternal  orders  have  come 
very  near  solving  the  problem  so  far  as  insurance  is  con- 
cerned. They  lack  however  the  economy  and  strength  that 
would  come  from  a  single  organization  without  competition 


882  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  under  no  necessity  to  solicit  business.  The  chief  expense 
of  all  insurance  companies  is  connected  with  getting  the  busi- 
ness. The  ideal  organization  would  be  one  resorted  to  by  all 
insurers,  which  paid  all  honest  losses  promptly  and  collected 
from  policyholders  only  enough  to  enable  it  to  do  so  and  to 
pay  reasonable  wages  to  all  its  necessary  officers  and  clerks. 
The  Rochdale  store  system  is  designed  to  eliminate  mer- 
chant's profits  by  distributing  among  the  stockholders  the 
net  profits,  above  a  fixed  moderate  percentage  on  the  capital 
stock  and  the  expenses  of  transacting  the  business,  on  the 
basis  of  the  amount  of  goods  purchased  rather  than  the 
amount  of  stock  held.  Sometimes  a  part  of  these  profits  is 
given  to  the  employees.  The  usefulness  of  these  organiza- 
tions depends  on  integrity  and  ability  in  management  and  the 
combination  of  a  sufficient  number  of  patrons  of  the  stores 
to  make  economical  management  practicable  and  leave  a  mar- 
gin of  savings.  Very  small  concerns  can  rarely  succeed.  The 
same  principle  is  now  being  applied  in  selling  agencies.  The 
producers  of  many  articles  of  commerce  find  it  to  their  in- 
terest to  combine  and  sell  their  products  in  the  general  market 
through  a  common  agency,  instead  of  selling  to  dealers, 
thereby  saving  the  profits  and  distributing  them  among  the 
stockholders  who  sell  their  products  to  the  corporation,  on 
the  same  principle  as  the  Rochdale  stores  distribute  them 
among  buyers.  Though  some  of  these  cooperative  concerns 
have  assumed  large  proportions,  as  a  rule  they  are  engaged  in 
lines  of  business  requiring  only  a  small  capital.  Little  or  no 
success  has  as  yet  attended  the  construction  of  railroads  or 
other  public  service  plants,  requiring  large  capital,  on  a  co- 
operative basis.  In  cities  the  public  municipal  corporations 
successfully  take  on  the  added  functions  of  supplying  the 
municipality  with  water,  light,  heat,  power,  street  transpor- 
tation and  the  like,  in  which  all  the  citizens  are  interested 
and  require  similar  service..  The  principle  on  which  these 
public  utilities  are  conducted  by  the  municipalities  is  that  of 
cooperation.  The  service  is  rendered  at  cost,  interest  being 
usually  paid  on  a  bonded  debt  covering  the  cost  of  the 
property. 


UNITED  STATES   .  883 

The  problem  as  affecting  railroads,  telegraphs  and  tele- 
phones has  been  solved  in  Europe,  New  Zealand  and  else- 
where by  governmental  ownership,  thus  extending  the 
cooperative  principle  to  the  conduct  of  these  lines  of  business 
by  the  highest  corporation,  the  state.  The  International 
Postal  Union  has  gone  yet  one  great  stride  farther  and  is 
the  pioneer  world  wide  cooperative  combination,  which  trans- 
mits the  mails  from  any  part  of  the  civilized  world  to  any 
other  part  of  it,  with  the  maximum  of  efficiency  and  the 
minimum  of  cost.  No  other  business  agency  in  the  United 
States  compares  in  efficiency  with  the  Post  Office.  This  is 
a  purely  cooperative  enterprise,  conducted  in  the  interest  of 
the  whole  people  by  the  national  government  and  is  the  most 
useful  and  important  function  it  performs.  The  great  tele- 
graph company  operated  by  a  purely  capitalistic  corporation 
with  capitalistic  methods  over  substantially  the  same  territory 
within  the  United  States  and  also  reaching  into  other  coun- 
tries, gives  very  poor  service  at  very  high  rates  and  stands  in 
strong  contrast  with  the  Post  Office  both  as  to  efficiency  and 
economy. 

The  true  position  of  the  corporation  is  that  of  a  pioneer  in 
the  work  of  organizing  the  world  on  a  firm  basis  of  peace. 
Unlike  the  military  organizations  of  feudal  times,  which  per- 
formed no  beneficial  function  for  the  common  good,  the  cor- 
porations, almost  without  exception,  conduct  some  useful 
business.  They  combine  capital  and  labor  in  trade,  transpor- 
tation, manufacturing,  mining,  fishing  or  other  peaceful  pro- 
ductive enterprise.  Great  latitude  is  allowed  in  all  the  Ameri- 
can states  in  the  purposes  for  which  corporations  may  be 
formed.  The  corporators  are  allowed  to  fix  the  amount  of 
their  capital  stock,  the  size  of  the  shares,  the  duration  of  the 
corporation,  to  give  it  a  name  and  specify  the  objects  it  in- 
tends to  accomplish,  which  many  states  allow  by  statute  to  be 
any  lawful  one.  This  permits  anyone  to  take  the  initiative 
and  form  an  organization  to  do  anything  useful,  with  what- 
ever strength  of  combination  he  is  able  to  draw  together. 
Success  in  the  enterprise  requires  not  merely  the  requisite 
capital  and  working  force,  but  the  education  of  all  who  are 


884  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

connected  with  it  in  its  principles  and  methods,  so  that  each 
may  know  his  duty  to  the  corporation  and  its  members  and  to 
the  pubHc.  Failure  comes  from  many  causes,  inadequate 
capital,  incompetent  management  and  dishonesty,  but  most 
frequently  of  all  from  want  of  a  perfect  understanding  as  to 
the  end  to  be  accomplished,  and  how  it  is  to  be  done.  Ill- 
digested  schemes,  not  quite  clear  in  the  minds  of  the  pro- 
moters, or  well  digested  ones  not  fully  comprehended  by  those 
relied  on  to  carry  them  through,  are  generally  doomed  to 
failure  from  the  start. 

No  other  topic  fills  so  wide  a  field  in  the  law  or  is  of  such 
growing  importance  as  that  of  corporations.  In  no  other 
way  is  the  genius  for  directing  the  combined  efforts  of  num- 
bers of  people  so  fully  manifested  as  in  their  organization  and 
operations.  They  afford  object  lessons  of  deep  moral  de- 
pravity and  of  the  most  exalted  altruism,  of  heartless  greed 
and  cruelty  and  of  that  charity  and  helpfulness  which  is  the 
outward  expression  of  love  for  the  unfortunate.  They  should 
be  approved  or  condemned  according  to  their  deserts,  and 
fostered  or  destroyed  according  to  their  helpful  or  harmful 
effects.  Viewed  a$  a  whole  they  fairly  gauge  the  moral 
standards  and  efficiency  of  the  business  world,  and  point  the 
way  to  higher  and  still  higher  social  development. 

National  and  State  Laivs 

The  system  of  laws,  which  prevails  throughout  the  United 
States,  has  for  its  foundation  the  common  law  of  England 
and  the  ancient  statutes  of  that  country.  It  is  a  very  com- 
mon error  to  assume  that  the  original  purpose  of  all  laws  was 
to  compel  all  to  be  just.  Many  laws  in  all  countries  are  de- 
signed to  promote  injustice.  This  is  true  of  the  land  laws  of 
England.  The  leading  purpose  of  the  law-makers,  since  the 
free  Saxon  common  tenure  of  land  was  changed  into  the 
feudal  system,  has  been  to  give  unmerited  advantages  to  the 
king  and  his  courtiers,  in  early  times,  and  to  the  favored  few 
in  modern,  through  a  legal  theory  of  land  ownership.  AH 
the  monstrous  injustice  of  the  feudal  tenures  was  based  on 
strict  law,  which  gave  to  the  lord  the  soil  and  through  his 


UNITED  STATES  885 

title  to  it  arbitrary  power  over  all  the  dwellers  on  it.  There 
are  some  survivals  of  ancient  Saxon  ideas  in  the  commons 
and  highways  of  the  country,  but  the  leading  idea  of  exclus- 
ive ownership  of  the  soil,  without  reference  to  use  or  occu- 
pancy, is  the  feudal  idea  modernized.  Under  the  feudal 
system  the  lord  exacted  services  from  his  tenants,  but  was 
himself  bound  to  protect  the  tenants  in  their  possessions.  Un- 
der the  modern  American  system  of  absolute  paper  titles,  one 
may  acquire  the  title  to  an  unlimited  area  of  land,  without  be- 
ing under  any  obligation  to  allow  any  of  the  tenants  on  it  to 
remain,  and  with  no  limitation  whatever  on  the  terms  he  may 
impose  on  those  he  may  take  as  his  tenants.  He  cannot  be 
forced  to  sell  or  rent  any  part  of  it,  except  for  public  use  for 
those  purposes  recognized  as  warranting  the  exercise  of  the 
right  of  eminent  domain.  In  the  early  history  of  the  country 
there  was  an  extensive  development  along  lines  somewhat 
similar  to  the  ancient  tenure  in  common.  The  government  of 
the  United  States  acquired  vast  districts  of  country,  subject 
only  to  the  claims  of  the  native  Indian  tribes,  which  were  held 
as  public  property.  Some  of  the  states,  notably  Texas,  have 
had  great  areas  of  public  lands.  In  the  early  days  of  sparce 
population  sales  in  large  tracts  were  allowed,  but  the  policy 
of  the  federal  government  has  been  to  restrict  the  amount 
any  individual  may  acquire  to  a  moderate  sized  farm,  to  be 
occupied  and  tilled  by  the  owner.  The  homestead  law  re- 
stricts the  quantity  to  160  acres  and  requires  five  years'  resi- 
dence and  cultivation  before  a  patent  issues.  This  system  has 
worked  beneficially  so  long  as  there  remained  an  abundance 
of  fertile  country  unoccupied.  But  the  limit  has  already  been 
reached  and  desirable  homes  on  the  public  domain  are  now 
hard  to  find.  Mountains  and  deserts  abound,  but  the  great 
fertile  prairies  have  all  become  private  property.  The  nation 
is  no  longer  able  to  give  to  each  of  its  citizens  land  for  a 
home,  and  the  process  of  differentiating  classes  of  landlords 
and  tenants  is  proceeding  rapidly.  The  eleventh  census  shows 
that  in  the  new  western  states  and  territories  the  percentage 
of  home  owners  is  largest,  and  that  it  is  smallest  in  the  south- 
ern states  having  the  largest  percentage  of  colored  people. 


886  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

This  census  shows  that  of  the  whole  12,690,152  families  in 
the  United  States,  only  47.8  per  cent  owned  the  homes  they 
occupied,  and  52.2  per  cent  were  tenants.     In  1910  the  per- 
centage of  home  owners  had  fallen  to  46.5.     The  extreme 
range  was  exhibited  in  Oklahoma  with  only  13. 11   per  cent 
of  tenants  and  South  Carolina  with  71.23  per  cent.    As  might 
naturally  be  expected,  the  showing  in  the  great  cities  is  still 
more  discouraging.     In  the  twenty-eight  leading  cities  hav- 
ing a  population  of  100,000  or  more,  there  were  1,948,834 
families  of  which  444,879  owned  the  homes  they  occupied 
and  1,503,955  or  77.17  per  cent  lived  in  rented  houses.     In 
the  great  city  of  New  York,  out  of  a  total  of  312,754  fam- 
ilies, only   19,798  or  6.33  per  cent  owned  the  homes  they 
lived  in.    These  figures  are  a  little  more  unfavorable  through- 
out than  the  facts,  because  many  people  own  homes,  but  rent 
them  and  live  elsewhere  in  rented  houses.    Widows,  bachelors 
and  maiden  ladies  often  rent  their  property  and  live  with  a 
tenant  family.     New  York  but  illustrates  the  tendency  every- 
where manifest  for  the  land  to  pass  into  few  hands,  where- 
ever  the  law   assures  ownership  to   the  holder  of   a  paper 
title  and  his  heirs  without  regard  to  occupancy.     The  most 
significant  facts  connected  with  this  subject  are,  that  there  is 
a  steady  drift  of  population  into  the  cities,  that  in  the  cities 
the  land  falls  under  the  dominion  of  a  diminishing  percentage 
of  owners,  and  that  the  laws  favor  and  effectuate  this  tendency. 
Some  wealthy  families  in  each  of  the  older  great  cities  have 
for  several  generations  steadily  pursued  the  policy  of  buying 
land  and  never  selling.     Where  the  income  exceeds  the  ex- 
penses, as  the  law  stands,  there  is  nothing  to  prevent  a  great 
land  owner  from  steadily  extending  his  holdings  and  thereby 
diminishing  the   area   accessible   to   others   seeiking  to   own 
homes.     The  important  point  now  under  consideration  is  that 
this  results  from  artificial  human  law,  and  not  from  the  law 
of  nature.     In  all  primitive  societies  use  and  occupancy  are 
the  only  titles  recognized.     Where  the  land  is  ample  and  the 
people  are  few,  each  man  is  allowed  to  occupy  what  he  pleases 
and  when  he  abandons  it  anyone  else  may  take  it.    As  popula- 
tion increases  the  tribe  parcels  out  the  land,  giving  to  each  his 


UNITED  STATES  887 

share,  but  the  ownership  is  in  the  whole  and  the  ancient 
Saxons  divided  it  among  the  working  units.  We  are  not  now 
considering  the  expediency  of  paper  titles,  but  seek  to  em- 
phasize the  point  that  the  system  is  wholly  artificial,  and  that 
the  division  of  the  people  into  landlords  and  tenants  is  en- 
tirely due  to  the  law.  Whatever  of  injustice  there  is  in  it  is 
chargeable  to  the  law.  The  law  gives  the  landlord  absolute 
dominion  over  his  lands  and  tenements,  except  as  he  volun- 
tarily parts  with  it,  and  subject  to  the  taxes  and  burdens 
imposed  by  public  authority. 

To  those  who  have  given  no  study  to  the  laws  it  might 
occasion  great  surprise  to  find  how  little  of  the  law  adminis- 
tered by  the  courts  is  based  on  Congressional  or  Legislative 
enactment.  It  is  also  remarkable  that  of  the  great  mass 
of  public  acts  of  the  law-making  bodies,  published  as  the  work 
done  at  each  session,  so  little  is  of  permanent  force  and  so 
much  is  either  temporary  in  character  or  mere  revision  or 
alteration  of  what  preceded  it.  The  compilation  of  the  Gen- 
eral Statutes  of  the  United  States  published  in  1875  contains 
seventy-four  titles,  of  which  one  regulates  the  election  of 
senators  and  representatives,  the  organization  of  the  houses, 
compensation  of  members,  officers  and  employees,  the  library, 
congressional  investigations  and  contested  elections,  another 
regulates  presidential  elections  and  president's  salary.  Then 
follow  nine  titles  devoted  to  the  organization  and  conduct 
of  the  executive  departments,  State,  War,  Treasury,  Justice, 
Post  Office,  Navy,  Interior  and  Agriculture.  Title  13  es- 
tablishes the  District  and  Circuit  Courts  and  fixes  the  juris- 
diction, organization  and  procedure  of  all  the  federal  courts. 
After  these  are  titles  dealing  with  the  Army,  the  Navy,  the 
Militia,  Arsenals  and  Arms,  Diplomatic  and  Consular  Offi- 
cers. Title  23  treats  of  the  organization  of  the  Territories 
and  the  four  following  of  Civil  Rights,  Citizenship,  the 
Elective  Franchise  and  Freedmen.  Title  28  declares  the  policy 
of  the  government  toward  the  Indians  and  makes  provisions 
to  carry  it  into  execution.  After  this  come  titles  on  Immi- 
gration, Naturalization,  The  Census,  Public  Lands,  Duties  on 
Imports,    Collection   of   Duties,   Internal   Revenue,    Coinage, 


888  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Weights  and  Measures,  Currency,  Legal  Tender,  Public 
Moneys,  Appropriations,  Public  Debt,  Postal  Service,  For- 
eign Relations,  Commerce  and  Navigation,  Fisheries,  Steam 
Vessels,  Merchant  Seamen,  Prizes,  Lights  and  Buoys,  Coast 
Survey,  Pensions,  Public  Health,  National  Hospitals,  Asy- 
lums and  Cemeteries,  Patents,  Trade  Marks  and  Copyrights, 
Bankruptcy,  National  Banks,  Rivers  and  Harbors,  Railways, 
Telegraphs,  Crimes  against  the  United  States,  and  some 
minor  matters.  All  this  is  printed  in  a  single  volume  of  1092 
pages,  exclusive  of  index.  By  far  the  greater  space  is  de- 
voted to  the  organization  of  the  departments  and  working 
forces  of  the  government,  the  army  and  navy,  the  public 
revenue  and  matters  growing  out  of  the  civil  war.  There 
is  very  little  that  affects  the  daily  life  of  the  citizen,  except  the 
Post  Office. 

Though  the  people  of  the  United  States  are  educated  away 
from  the  forms  of  unjust  government,  which  military  power 
has  so  often  established,  they  are  not  yet  fully  awake  to  the 
barbarity,  the  criminality  and  utter  un justifiability  of  aggres- 
sive warfare,  or  of  war  to  gratify  the  pride,  often  wrongly 
called  the  dignity,  of  a  nation.  In  the  early  days  of  the  Re- 
public private  warfare  was  popular.  In  the  North  and  East 
an  insult  must  be  resented  by  a  blow  with  the  fist,  in  the 
South  and  West  by  a  challenge  to  fight  a  duel.  The  so-called 
code  of  honor  required  a  challenge  to  be  given  under  certain 
conditions,  to  refuse  which  meant  social  disgrace.  Friends 
must  be  called  in  to  witness  the  fight  and  the  purpose  was  to 
kill.  This  survival  of  barbarism  has  now  fallen  into  disfavor 
and  many  of  the  states,  in  which  such  combats  were  most 
frequent,  have  adopted  constitutional  prohibition  of  it. 

In  sifting  the  provisions  of  all  the  statutes  of  the  United 
States,  for  the  purpose  of  finding  such  as  make  provisions 
beneficial  to  the  people,  we  find  provisions  with  reference  to 
the  public  lands,  coinage,  weights  and  measures,  the  cur- 
rency, commerce  and  navigation,  lights  and  buoys,  hospitals, 
asylums,  and  river  and  harbors  are  necessary  and  useful. 
Most  of  the  rest  relate  to  the  construction  of  the  great  gov- 
ernmental machine  and  the  manner  of  compelling  the  people 


UNITED  STATES  889 

to  support  it.  Since  the  acquisition  of  the  PhiUppine  Islands 
the  miHtary  feature  has  grown  rapidly  and  the  policy  of  con- 
structing war  ships,  very  expensive  and  utterly  without  use 
in  times  of  peace,  has  been  adopted,  and  many  millions  are 
annually  expended  on  them.  From  $48,950,268  for  war  and 
$34,561,546  for  the  navy  in  1897,  the  appropriations  increased 
and  in  191 1  were  $160,135,976  for  war  and  $119,937,644, 
for  the  navy.  A  great  navy  of  this  kind  will  never  be  of 
any  use  except  in  war,  and  its  possession  will  be  an  ever 
present  temptation  to  statesmen  to  plunge  the  country  into 
foreign  wars  on  slight  provocation.  The  only  sure  bond  of 
peace  between  nations,  as  well  as  between  individuals,  is 
confidence  in  each  other's  intentions  and  mutual  good  will. 
Great  armies  and  navies  always  prevent  this  confidence.  It 
is  fairly  certain  that  the  United  States,  if  always  disposed 
to  deal  justly  with  others,  could  safely  rely  on  peaceful  in- 
fluences to  secure  the  rights  of  its  citizens  the  world  over, 
to  substantially  the  same  extent  that  they  are  now  secured. 
Wrongs  will  doubtless  continue  to  be  done  in  the  future  as 
in  the  past,  but  the  greatest  of  all  wrongs  with  which  the 
world  has  been  cursed  throughout  all  time  are  the  cruel  wars 
m  which  the  innocent  expiate  the  crimes  of  their  guilty  rulers 
and  leaders. 

The  ground  covered  by  the  statutes  of  the  States  is  quite 
different  from  that  of  the  National  legislation.  It  reaches 
the  daily  life  of  the  people  at  far  more  points.  The  statutes 
of  each  state  regulate  the  machinery  of  the  state  government 
and  also  that  of  the  counties,  towns,  cities  and  school  dis- 
tricts. They  determine  and  establish  the  qualifications  of 
voters,  the  manner  of  exercising  the  elective  franchise,  the 
educational  system  from  the  district  school  to  the  university, 
the  organization  of  the  various  courts,  their  jurisdiction  and 
procedure,  the  charitable  and  penal  institutions,  the  establish- 
ment, improvement  and  repairing  of  highways  and  bridges, 
the  descent  and  distribution  of  property,  the  administration 
of  estates,  the  organization  of  corporations,  their  powers, 
duties  and  liabilities,  the  criminal  code  defining  all  public 
offenses  and  fixing  their  punishments,  the  rules  governing 


Sgo  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  guardianship  of  minors  and  care  of  their  estates,  mar- 
riage, divorce,  the  conveyance  and  mortgaging  of  land  and 
recording  the  deeds  and  other  instruments  affecting  the  title 
to  it,  taxation,  partnerships,  assignments  for  the  benefit  of 
creditors,  interest,  contracts,  fences,  landlords  and  tenants, 
liens  on  real  and  personal  property,  lunatics,  imbeciles  and 
drunkards,  domestic  animals,  trusts  and  powers.  Matters 
of  local  concern  peculiar  to  the  state  are  also  covered.  Of  all 
the  functions  of  the  state  government  that  of  educating  the 
young  is  far  the  most  important.  Of  all  the  good  things 
passed  down  from  generation  to  generation,  the  accumulated 
knowledge  is  the  most  valuable.  Part  of  this  is  passed  down 
outside  the  schools,  in  the  homes,  on  the  farms,  in  the  work- 
shops, factories,  mines,  counting-houses  and  all  the  places 
where  useful  things  are  done.  Instruction  in  useful  employ- 
ments is  mostly  given  outside  the  schools,  though  there  is  a 
marked  increase  of  late  in  the  attention  given  in  the  schools 
to  domestic  science,  agriculture  and  mechanical  arts.  The 
practical  instruction  in  domestic  arts  and  in  some  particular 
business,  which  the  child  receives  at  home  and  in  connection 
with  such  business  is  of  the  greatest  practical  value,  but  the 
schools  open  a  wider  field  to  those  disposed  to  inquire  and 
introduce  the  student  to  some  knowledge  of  the  outside  work! 
which  he  cannot  see,  to  the  past  and  the  distant.  Narrow 
prejudices  tending  to  enmity  between  individuals  and  nations 
are  mainly  due  to  lack  of  knowledge  of  each  other.  The 
bonds  that  bind  the  people  of  the  United  States  in  concord 
are  the  bonds  of  interest  and  sympathy,  which  are  steadily 
strengthened  by  the  diffusion  of  general  information.  The 
public  schools  where  the  young  are  taught  to  read  and  write, 
lay  the  foundation  for  the  great  educational  work  of  the 
newspapers,  periodicals  and  correspondence  distributed 
through  the  post  office,  and  for  the  use  of  books  and  libraries, 
which  constitute  the  more  permanent  treasure  houses  of 
knowledge.  While  the  general  government  has  assigned  to 
the  new  states  a  portion  of  the  public  domain  to  be  used  for 
the  support  of  the  public  schools,  the  great  burden  of  public 
instruction   is   borne  by  the  people  under   state   regulations. 


UNITED  STATES  891 

The  actual  direction  of  school  affairs  is  mainly -given  by  the 
people  themselves,  who  voluntarily  contribute  generously  for 
the  free  instruction  of  all  pupils.  In  many  states  all  the 
public  schools  from  primary  to  university  give  free  in- 
struction to  all  children  of  the  state.  While  there  is  ample 
room  for  improvement  in  the  school  system,  both  as  to  its 
general  theories  and  methods  of  instruction,  modern  civiliza- 
tion finds  its  highest  and  best  practical  expression  through 
the  educational  institutions.  All  progress  necessarily  comes 
from  the  preservation  and  dissemination  of  the  truths  gath- 
ered from  past  experience,  supplemented  by  the  few  newly 
discovered  ones. 

There  are  some  statutes  to  be  found  in  nearly  or  quite  all 
the  states,  copied  or  modelled  after  old  English  statutes, 
which  are  believed  to  be  dictated  by  public  policy,  though  not 
founded  on  any  principle  of  natural  justice.  What  is  known 
as  the  statute  of  Frauds  and  Perjuries  requires  certain  classes 
of  contracts  to  be  in  writing  and  denies  relief  in  the  courts 
on  parol  contracts  of  these  classes,  notably  contracts  for  the 
sale  of  lands,  trusts  relating  to  lands,  contracts  to  pay  the 
debt  of  another,  those  based  on  the  consideration  of  mar- 
riage, and  such  as  are  not  to  be  performed  within  a  given 
period  of  time.  The  statute  of  limitations  denies  relief  in 
the  courts  unless  suit  be  brought  within  the  time  limited  by 
the  statute  for  the  particular  class  of  actions  to  which  the 
cause  belongs.  The  theory  on  which  these  statutes  were 
passed  is,  that  dishonest  persons  would  claim  rights  under 
parol  contracts  of  the  classes  named  and  support  their  claims 
by  perjury,  and  therefore  written  evidence  should  be  required, 
and  that  stale  demands  are  liable  to  be  presented  and  falsely 
urged  after  the  evidence  to  defeat  them  has  been  lost.  Both 
these  statutes  confessedly  work  injustice  by  denying  relief 
on  just  claims  under  the  arbitrary  rules  they  impose.  They 
assume  the  prevalence  of  dishonesty  among  the  people  to 
such  an  extent  that  more  wrong  would  result  by  reason 
thereof,  if  suits  were  allowed  to  be  maintained,  than  by  denial 
of  all  remedy  in  the  courts.  This  view  may  be  altogether 
erroneous,  but  the  consensus  of  legislative  judgment  is  such 


892  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

as  to  continue  these  arbitrary  rules  with  considerable  varia- 
tion, however,  in  the  different  states,  especially  in  the  times 
allowed  for  bringing  suits. 

While  the  state  statutes  generally  require  some  public  cele- 
bration of  marriages  and  many  states  require  marriage  li- 
censes to  be  taken  out,  compliance  with  these  requirements  is 
not  generally  held  to  be  absolutely  essential  to  a  valid  mar- 
riage. The  only  communities  where  plurality  of  wives  has 
been  allowed  are  the  Mormon  settlements.  Public  sentiment 
throughout  the  whole  country  has,  however,  been  so  strong 
against  polygamy,  that  severe  statutes  have  been  passed  to 
extirpate  it,  and  it  is  not  now  countenanced  by  the  laws  of 
any  state  or  territory.  Everywhere  the  free  consent  of  the 
parties  to  the  marriage  is  regarded  as  the  only  real  concern 
of  the  state.  After  marriage,  in  most  states,  the  wife  has 
a  status  amounting  nearly  or  quite  to  legal  equality  with  her 
husband.  The  old  English  rule,  which  merged  the  legal  ex- 
istence of  the  wife  in  that  of  the  husband,  has  been  done 
away  with  and  the  wife  may  in  most  states  own  property  in 
her  own  name,  contract  debts,  buy,  sell  and  carry  on  business 
with  nearly  or  quite  the  same  freedom  as  a  married  man. 

The  greatest  diversity  of  state  laws  is  on  the  subject  of 
divorce.  At  one  extreme  South  Carolina  by  the  constitution 
of  1895  establishes  the  rule  "Divorces  from  the  bonds  of 
matrimony  shall  not  be  allowed  in  this  state."  Other  states 
like  New  York  allow  absolute  divorces  for  adultery  only,  but 
the  courts  are  authorized  to  annul  certain  unlawful  or  void 
marriages.  At  the  other  extreme  are  Kansas  and  some  of 
the  other  western  states,  which  authorize  the  courts  to  grant 
absolute  divorces,  for  abandonment  for  one  year,  adultery, 
impotency,  pregnancy  of  wife  at  marriage  by  one  other  than 
her  husband,  extreme  cruelty,  fraudulent  contract,  habitual 
drunkenness,  gross  neglect  of  duty,  conviction  of  a  felony  or 
having  another  husband  or  wife  living  at  the  time  of  mar- 
riage. Between  these  extremes  there  is  much  diversity  in 
the  statutes  of  the  different  states. 

The  statutes  relating  to  the  organization  and  management 
of  corporations  also  exhibit  great  diversity.     In  some  states 


UNITED  STATES  893 

a  corporation  may  be  formed  to  carry  on  any  lawful  business 
or  promote  any  legitimate  object,  as  in  Delaware,  and  the 
only  formalities  required  are  filing  a  charter  with  the  Secre- 
tary of  State  setting  forth  certain  matters  specified  in  the 
law  and  payment  of  certain  fees.  Other  states  prescribe  the 
purposes  for  which  corporations  may  be  formed  with  much 
particularity  and  require  application  to  be  made  to  some 
court,  board  or  offtcer  authorized  to  pass  on  the  right  to 
incorporate  for  the  purpose  desired. 

Statutes  in  each  of  the  states  regulate  the  descent  and  dis- 
tribution of  the  property  of  deceased  persons.  All  are  framed 
on  the  theory  that  the  owner  may  dispose  of  it  by  will,  and 
that  in  the  absence  of  a  will  the  whole  shall  be  distributed  to 
those  related  to  the  deceased  owner  by  blood  or  marriage. 
The  leading  difference  in  the  division  made  is  in  the  share 
allowed  to  the  surviving  widow  or  husband,  thus  in  some  of 
the  older  states  like  Massachusetts,  New  York  and  New  Jer- 
sey the  wife  is  given  the  old  common  law  estate  of  dower, 
i.e.,  a  life  estate  in  one-third  the  deceased  husband's  lands, 
and  the  husband  takes  a  life  estate  in  all  the  deceased  wife's 
lands  as  tenant  by  courtesy,  if  there  has  been  issue  of  the 
marriage  born  alive.  In  Colorado,  if  there  are  children,  the 
surviving  husband  or  wife  takes  half  the  estate,  if  no  children 
the  whole.  In  other  states  there  are  provisions  intermediate 
between  these,  some  of  them  varying  the  rule  according  to 
the  number  of  children  and  others,  where  there  are  no  chil- 
dren, giving  the  wife  the  whole  only  of  small  estates  and  dis- 
tributing a  portion  of  large  estates  among  the  relatives  of 
the  husband.    In  Mississippi  the  widow  takes  a  child's  part. 

In  the  distribution  of  the  estate  among  children  and  their 
descendants,  after  the  share  of  the  husband  or  wife  has  been 
set  apart,  there  is  entire  uniformity  throughout  all  the  states. . 
The  children  take  equally  and  the  heirs  of  deceased  children 
take  by  representation.  There  is  no  preference  given  in  any 
state  on  account  of  age  or  sex.  There  is  more  diversity  in 
the  distribution  among  collaterals,  which  it  would  serve  no 
present  purpose  to  follow.  In  no  state  is  there  any  sur- 
vival either  of  primogeniture  or  the  ancient  inheritance  by 


894  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  whole  community.  Recently  some  of  the  states  have  im- 
posed a  tax  on  large  estates,  but  the  idea  of  state  inheritance 
has  not  received  any  legislative  consideration  so  far  as  the 
writer  is  aware.  In  many  states  the  homestead  is  secured 
against  sale  for  debts  and  division  among  the  heirs  until  the 
youngest  child  becomes  of  age.  The  mode  of  conveying  lands 
is  regulated  by  statute  and  is  substantially  uniform  through- 
out .all  the  states.  A  deed  signed  by  the  grantor  is  required. 
In  order  that  the  deed  may  be  recorded,  it  must  be  acknowl- 
edged before  some  one  of  the  officers  named  in  the  statute 
and  his  certificate  of  the  fact  attached  to  the  deed.  In  order 
to  impart  notice  of  the  transfer  of  the  title,  the  deed  must 
be  recorded  in  a  public  office,  usually  termed  that  of  the  Reg- 
ister or  Recorder  of  Deeds.  There  is  a  difference  in  some 
states  between  a  conveyance  of  the  homestead  and  of  other 
real  estate,  the  joint  consent  of  husband  and  wife  being  re- 
quired. Their  separate  deeds  have  been  held  in  some  cases 
absolutely  void.  There  is  also  much  diversity  in  the  different 
states  as  to  the  effect  of  a  conveyance  by  the  husband  alone 
on  the  wife's  inheritable  interest  in  his  lands.  In  some 
states  the  husband  may  convey  a  full  title  to  all  but  the 
homestead  by  his  separate  deed,  while  in  others  the  wife's 
dower  or  other  inheritable  interest  in  his  estate  remains,  un- 
less she  joins  in  the  conveyance.  In  Louisiana,  Texas,  New 
Mexico,  Arizona,  California,  Nevada,  Idaho  and  Washington 
a  distinction,  borrowed  from  the  Spanish  law,  is  made  be- 
tween property  owned  prior  to  the  marriage  and  that  ac- 
cumulated afterward,  the  latter  being  termed  community 
property  and  regarded  as  jointly  owned  by  both.  This  joint 
ownership  does  not  in  Louisiana  prevent  the  husband  alone 
from  conveying  it.  At  the  death  of  one  the  survivor  takes 
only  the  half,  subject  to  the  payment  of  debts,  and  the  bal- 
ance goes  to  the  heirs.  There  is  much  diversity  in  the  laws 
of  the  different  states  with  reference  to  what  property  may 
be  seized  for  the  payment  of  debts.  All  exempt  some  personal 
property,  but  there  is  much  difference  in  the  amount.  The 
general  idea  is  to  leave  to  the  debtor  and  his  family  those 
things  which  are  indispensible  to  their  comfortable  existence. 


UNITED  STATES  895 

In  many  states  this  exemption  includes  books,  pictures  and 
musical  instruments  without  limit  as  to  value,  and  even  the 
identical  articles  for  which  the  debt  was  contracted.  With 
reference  to  the  exemption  of  land  there  is  even  greater  di- 
versity, none  being  allowed  in  Rhode  Island  or  Delaware. 
In  Pennsylvania  $300  in  value  of  real  or  personal  property, 
selected  by  the  debtor,  and  all  wearing  apparel,  bibles  and 
school  books  are  exempt.  In  most  of  the  eastern  states,  by 
compliance  with  certain  statutory  provisions,  a  homestead  of 
limited  value  may  be  secured;  in  Maine  the  limit  is  $500,  in 
New  York  and  New  Jersey,  $1,000,  in  Virginia  $2,000,  while 
in  Kansas  an  acre  of  ground  in  a  city  or  one  hundred  and 
sixty  acres  of  farming  land,  occupied  as  a  residence  by  the 
family  of  the  debtor,  with  all  the  improvements  thereon  with- 
out regard  to  value,  is  absolutely  exempt,  and  in  Texas  a 
town  homestead  worth  $5,000  or  a  farm  of  two  hundred 
acres  is  allowed.  The  wages  of  the  debtor,  where  necessary 
for  the  support  of  his  family,  are  also  usually  exempt  for  a 
limited  period.  This  stands  in  marked  contrast  with  the 
brutal  system  which  prevailed  at  the  time  of  the  revolution, 
under  which  the  family  could  be  stripped  to  utter  destitution 
and  the  debtor  thrown  into  prison,  to  be  confined  at  the 
pleasure  of  the  creditor  till  some  friend  paid  the  debt.  The 
extremely  liberal  exemptions  allowed  in  states  like  Kansas 
are  often  taken  advantage  of  by  dishonest  men.  So  long  as 
the  state  continues  to  exercise  the  function  of  a  collecting 
agent  and  enforces  the  payment  of  debts,  it  is  manifestly 
inequitable  to  seize  the  little  stock  of  a  poor  groceryman  for 
his  debts,  and  at  the  same  time  allow  the  occupant  of  a 
palatial  mansion  or  a  farm  of  great  value  to  hold  a  fortune, 
exempt  fiom  the  payment  of  a  debt  to  this  same  groceryman 
for  necessaries  bought  from  his  store.  There  should  be  some 
reasonable  approach  toward  equality  in  such  laws,  as  is  the 
case  in  many  states. 

In  the  construction  of  the  judicial  systems  of  the  various 
states  and  in  the  procedure  in  the  courts,  while  there  are 
many  common  features  there  is  also  much  diversity  of  detail, 
due  in  part  to  divergent  views  of  expediency.     At  the  head 


896  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  all  the  states  there  is  a  court  of  appeals  with  authority  to 
reverse  the  judgments  of  inferior  courts  for  error  of  law. 
These  courts  are  usually  styled  the  Supreme  Court.  There  is 
held  in  each  county  one  or  more  courts  of  general  original 
jurisdiction,  called  either  the  district  or  circuit  court  in  most 
states.  Between  these  there  are  sometimes  intermediate 
courts  with  jurisdiction  to  review  certain  classes  of  decisions. 
Sometimes  an  appeal  is  allowed  successively  from  the  inter- 
mediate to  the  supreme  court.  At  the  base  of  the  judicial 
system  are  the  justices  of  the  peace,  usually  township,  but 
sometimes  county  officers.  Probate  jurisdiction  and  super- 
vision of  the  estates  of  deceased  persons,  minors,  and  others 
under  legal  disability  are  generally  vested  in  a  Probate  Court 
called  Orphan's  Court  in  some  states  and  Surrogate's  in  others, 
but  in  some  of  the  states  the  circuit  courts  exercise  this 
jurisdiction.  The  codes  of  practice  are  statutory  modifica- 
tions of  the  old  English  system  and  while,  in  what  are  termed 
the  code  states,  distinctions  between  actions  at  law  and  in 
equity  and  all  forms  of  action  are  in  terms  abolished,  many 
of  the  old  distinctions  are  still  retained.  The  idea  of  the 
framers  of  the  codes  was  to  simplify  the  system  and  avoid 
the  failures  of  justice,  which  occurred  so  frequently  because 
of  the  strict  rules  of  procedure  and  pleading.  It  must  be 
confessed,  however,  that  there  is  very  much  yet  to  be  desired 
in  the  way  of  reforms  in  the  methods  of  courts.  In  the  great 
care  which  has  been  taken  to  secure  strict  observance  of  posi- 
tive laws,  a  system  has  been  built  up  which  affords  the  aver- 
age citizen  little  chance  to  get  speedy  justice.  Though  in 
most  states  the  principles  formerly  applied  by  courts  both  of 
law  and  of  equity  are  now  applied  by  the  same  tribunal  in 
one  case,  they  are  applied  in  a  different  way.  Suits,  which 
under  the  English  system  were  required  to  be  brought  in  the 
law  courts,  entitle  the  party  to  a  trial  by  a  jury.  In  actual 
practice  the  verdict  of  a  jury,  except  where  it  acquits  a  de- 
fendant of  a  criminal  charge,  does  not  finally  decide  any- 
thing. On  a  motion  for  a  new  trial  the  court  may  set  it  aside. 
From  this  decision  an  appeal  may  be  taken  to  a  reviewing 
court  and  sometimes  again  to  a  higher  court,  where  the  de- 


UNITED  STATES  ,    897 

cision  of  the  trial  court  may  be  reversed.  If  a  question  of 
Federal  law  is  involved,  an  appeal  lies  still  to  the  Supreme 
Court  of  the  United  States  from  the  decision  of  the  highest 
court  of  the  state  having  cognizance  of  the  cause.  If  the 
decisions  of  the  courts  of  last  resort  were  final  it  would  not  be 
so  bad,  but  the  case  may  be  merely  reversed  for  error  in  the 
instructions  given  to  the  jury  by  the  trial  court  or  for  other 
erroneous  ruling  of  the  court,  such  as  the  improper  admis- 
sion or  rejection  of  evidence,  and  sent  back  for  a  new  trial. 
There  is  never  any  assurance  that  the  trial  court  will  not 
commit  an  error  on  some  other  point  at  the  next  trial,  and 
the  case  again  go  the  rounds  of  appeal,  reversal  and  new  trial. 
This  is  of  frequent  occurrence  and  suitors  are  often  worn 
out  in  an  effort  to  reach  a  final  determination  of  the  cause, 
which  can  only  be  when  the  highest  reviewing  court  agrees 
with  the  trial  judge  on  all  vital  questions  of  law  passed  on 
by  him.  Such  a  system  lacks  little  of  utter  absurdity.  The 
difficulty  is  hinged  on  the  sacred  right  of  trial  by  jury,  which 
is  thus  rendered  in  fact  valueless.  The  reviewing  court  will 
not  itself  decide  what  the  facts  are,  but  will  often  say  that  the 
findings  of  the  jury  are  not  in  accordance  with  the  evidence. 
These  delays  and  successive  trials  give  an  unconscionable  ad- 
vantage to  the  rich  suitor  or  the  strong  corporation,  able  to 
pay  the  expenses  of  the  litigation  and  go  from  court  to  court, 
while  the  poor  man  with  a  good  case  may  be  compelled  either 
to  accept  the  first  adverse  decision  or  give  a  lawyer  a  large 
part  of  his  claim  to  prosecute  the  case  farther  on  a  con- 
tingent fee.  Under  such  a  system  substantial  justice  is  lost 
sight  of,  and  the  business  of  the  lawyer  becomes  a  mere  ex- 
ercise of  technical  skill  in  taking  unwarranted  advantages  al- 
lowed by  the  rules  of  procedure.  It  may  well  be  doubted 
whether,  on  the  whole,  justice  is  promoted  by  reviewing 
courts.  At  times  it  has  happened  in  most  of  the  states  that 
the  court  dockets  have  become  overburdened  to  such  an  ex- 
tent that  a  case  could  not  be  reached  for  many  years.  Speedy 
decision  is  of  almost  as  much  importance  as  right  decision. 
Long  delay  is  a  substantial  denial  of  justice. 

Although  the  codes  in  terms  require  brevity  and  simplicity 


898  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

in  pleadings  there  is  in  the  system  actually  followed  and  re- 
quired by  the  courts  much  useless  prolixity  and  technicality. 
The  new  English  system  is  very  greatly  in  advance  of  any- 
thing followed  in  any  of  the  United  States,  except  perhaps 
that  under  the  Kansas  Code  of  1909.  The  new  Equity  Rules 
promulgated  by  the  Supreme  Court  of  the  United  States 
greatly  simplify  and  improve  the  practice  in  United  States 
courts  in  equity  cases. 

The  bulk  of  the  compiled  general  statutes  of  the  various 
states  varies  from  one  to  three  large  volumes.  Taking  those 
of  Kansas,  a  state  of  medium  size,  we  find  the  compilation 
divided  into  119  chapters  of  which  thirty-four  are  devoted  to 
the  state  institutions,  officers,  agencies,  revenues,  and  ex- 
penditures, eleven  to  courts  and  their  procedure,  four  to 
schools,  two  to  criminal  law  and  practice,  two  to  suffrage 
and  elections,  two  to  cities,  two  to  corporations  and  the  re- 
maining sixty-two  to  miscellaneous  matters,  some  of  very 
slight  importance. 

For  most  of  the  general  principles  of  the  law  administered 
by  the  courts  we  must  look  to  the  great  libraries  containing 
the  works  of  text  writers  and  the  reported  decisions  of  the 
courts  of  the  United  States,  the  several  states,  England  and 
its  dependencies.  Numerous  digests  and  Encyclopedias  have 
been  made  and  become  deficient  and  out  of  date  as  soon  as 
the  last  volume  was  published.  Reports  of  decided  cases  are 
being  published  in  each  state  at  such  a  rate  as  to  make 
a  considerable  library  from  the  issues  of  a  single  year.  The 
work  of  classification  of  the  various  topics  of  the  law  is  done 
according  to  the  view  of  the  writer  or  compiler,  and  new 
topics  are  being  added  from  time  to  time. 

While  much  of  the  law  administered  by  the  courts  and 
commented  on  in  the  written  opinions  published  in  the  re- 
ports is  more  or  less  connected  with  some  statute,  the  full 
exposition  of  the  law  on  any  subject  is  never  to  be  found  in 
any  statute,  but  must  be  searched  out  through  numerous  vol- 
umes. Even  the  classification  of  the  various  topics  of  the 
law  is  a  matter  on  which  the  various  authors  have  widely 
divergent  views,  and  much  of  the  conflict  in  the  decisions 


UxNITED  STATES  899 

arises  from  the  different  views  of  judges  as  to  the  class  in 
which  a  given  action  falls  and  the  particular  principle  which 
should  control,  rather  than  any  disagreement  as  to  what  the 
principles  of  the  law  are.  In  comparing  different  views  re- 
specting legal  classification  we  find  that  the  American  and 
English  Encyclopedia  of  Law,  in  which  the  titles  are  ar- 
ranged alphabetically  and  only  what  is  termed  substantive 
law  is  included,  there  are  sixty-one  titles  beginning  with  the 
letter  A.  In  the  companion  work  published  by  the  same  com- 
pany, the  Encyclopedia  of  Pleading  and  Practice,  there  are 
forty-two  titles  beginning  with  A,  while  the  American  Digest, 
Century  Edition,  which  is  considerably  more  full  and  bulky 
and  includes  both  substantive  law  and  pleading  and  practice, 
has  but  forty-five  titles  beginning  with  A.  Besides  these 
various  titles,  which  cover  some  topic  of  law,  there  are 
numerous  cross  references  and  brief  paragraphs  giving  defin- 
itions of  words.  The  system  followed  is  to  give  a  general 
statement  of  the  law  in  the  text  and  in  very  elaborate  foot- 
notes to  give  references  to  the  authorities  in  support  of  it.  The 
list  of  abbreviations  used  and  titles  of  the  works  to  which 
they  refer  covers  sixty- four  large  pages  of  fine  type.  The 
twenty-two  volumes  of  the  Encyclopedia  of  Pleading  and 
Practice  contain  five  hundred  and  sixteen  titles.  The  wide 
divergence  between  the  classifications  of  the  Encyclopedias 
and  the  Digest  is  due  to  the  fact  that  in  the  Digest  the  titles 
are  far  more  comprehensive  and  further  classifications  are 
made  by  sub-headings,  for  instance  in  the  Encyclopedia  of 
Law  the  title  Agency  fills  three  hundred  pages  and  is  by  odds 
the  most  important  in  Vol.  I,  while  in  the  Digest  there  is 
nothing  under  the  heading  Agency  but  a  cross  reference  to 
the  title  Principal  and  Agent.  On  the  other  hand  the  Digest, 
which  divides  its  large  closely  printed  pages  into  two  columns, 
fills  4951  columns  under  the  title  Appeal  and  Error,  while 
the  Encyclopedia  of  Law  has  no  such  title,  and  the  Ency- 
clopedia of  Pleading  and  Practice  gives  587  pages  to  Ap- 
peals, 335  to  Certiorari  and  ninety- five  to  Writ  of  Error. 
The  system  followed  in  England  and  America  of  develop- 
ing the  principles  of  the  law  by  the  written  opinions  of  the 


900  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

judges,  given  in  actual  controversies  decided  by  them  and 
contined  to  tlie  very  questions  in  issue,  has  been  much  ex- 
tolled, mainly  on  the  ground  that  great  care  is  necessarily 
exercised  in  the  performance  of  the  duty  of  determining  the 
rights  of  the  parties  before  the  court.  It  stands  in  sharp 
contrast  with  that  by  which  the  Roman  civil  law  was  de- 
veloped, which  was  largely  by  what  were  termed  rescripts, 
answering  abstract  questions  as  to  the  rule  in  a  given  case. 
It  may  as  well  be  confessed  now  as  later  that  our  system 
is  already  overgrown,  and  the  multiplication  of  decisions  and 
books,  instead  of  settling  and  making  clear  the  doubtful  mat- 
ters in  the  law,  year  by  year  introduces  confusion  and  un- 
certainty. There  is  a  widely  prevalent  disposition  among  the 
judges  to  refine  and  introduce  exceptions,  till  what  were  once 
fairly  clear  rules  of  easy  application  have  ceased  to  be  rules 
and  in  their  stead  the  individual  view  of  the  judge,  whatever 
it  may  be,  can  be  backed  with  an  authority  from  some  court 
or  other,  which  at  least  seems  to  support  it.  There  is  now  an 
ever  widening  field  of  uncertainty  as  to  what  the  rule  is  in 
certain  classes  of  cases.  This  works  to  the  advantage  of  the 
strong  suitor,  who  can  appeal  from  court  to  court,  and  the 
most  unfortunate  part  of  the  matter  is  that  this  field  of  un- 
certainty is  in  that  district  which  affects  the  interests  of  the 
great  combinations  of  capital  and  privilege. 

Corporations  and  their  rights,  powers,  duties  and  obliga- 
tions, are  now  by  far  the  most  prolific  subjects  of  litigation, 
and  under  various  headings  fill  more  than  than  3200  pages 
of  the  American  and  English  Encyclopedia  of  Law.  The 
main  reason  for  this  is  that  it  is  through  corporations  that 
most  modern  business  combinations  are  formed  and  new  en- 
terprises are  undertaken.  The  field  covered  by  them  is  con- 
stantly widening  and  includes  both  new  purposes  and  new 
methods  of  accomplishing  them.  The  laws  of  inheritance 
and  the  distribution  of  the  estates  of  deceased  persons  through 
the  courts  occupy  the  next  largest  space.  Frauds  and  fraud- 
ulent conveyances  of  property,  bills  of  exchange  and  promis- 
sory notes,  elections,  landlord  and  tenant,  homesteads  and 
exemptions   and   marriage   and   divorce   are   the   next   most 


UNITED  STATES  901 

prominent  topics.  It  is  gratifying  to  find  that  criminal  law 
has  become  of  minor  importance,  and  that  murder  and  homi- 
cide, the  most  prominent  title  of  the  criminal  law,  fills  far 
less  space  in  the  books  than  either  of  those  above  named. 

Military  law  is  a  subject  of  such  slight  importance  as  to 
require  but  little  notice,  and  religious  societies  are  no  longer 
prominent  litigants.  There  is  no  more  certain  gauge  of  the 
moral  height  of  any  society  than  that  of  the  purity  and 
strength  of  family  ties.  Yet  we  find  that  while  there  is  a 
full  consensus  of  opinion  among  thoughtful  people  on  this 
proposition,  there  is  a  wide  divergence  on  the  question  of 
divorce.  All  agree  that  husband  and  wife  should  be  faithful 
and  dutiful,  but  if  not  what  then?  There  are  two  opposing 
theories  of  expediency,  one  that  they  should  be  held  legally 
bound  to  each  other  and  forced  to  make  the  best  of  a  dis- 
tasteful relation,  the  other  that  when  the  matrimonial  bond 
has  become  intolerable  to  one,  it  should  be  dissolved  by  a 
court's  decree  and  the  parties  again  made  free  to  contract 
new  alliances.  Perhaps  the  most  radical  defect  in  the  laws  of 
those  states  which  grant  divorces  with  the  greatest  liberality 
is  in  failing  to  give  full  weight  to  the  claims  of  the  offspring 
of  the  union.  Children  have  natural  claims  on  both  parents 
and  are  most  deeply  interested  in  the  question  of  divorce  and 
the  breaking  up  of  the  family.  Except  in  rare  instances  they 
are  not  chargeable  with  the  wrong  doings  of  their  parents, 
but  rather  sufferers  therefrom.  A  suit  for  divorce  ought  not 
to  be  viewed  in  the  light  merely  of  a  controversy  between 
husband  and  wife,  but  rather  of  a  proceeding  to  disrupt  the 
family,  in  which  the  children,  being  innocent  parties,  are  en- 
titled to  have  their  interests  protected  before  a  divorce  is 
granted.  It  is  rarely  the  case  that  the  applicant  for  divorce 
is  wholly  free  from  fault.  Estrangements  usually  result  from 
some  wrong  on  both  sides  and  the  safer  standpoint  for  judi- 
cial action  is  that  of  the  general  interest  of  the  children,  to 
whom  the  public  owe  a  clear  duty  of  protection.  This  view 
is  now  taken  by  the  laws  of  some  states. 

The  rules  governing  the  relation  of  parent  and  child  are 
few  and  simple  yet  are  still  tinctured  with  some  remnants  of 


902  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

brutality.  The  parent,  if  too  passionate  or  stupid  to  govern 
his  child  by  reason,  may  beat  him,  and  only  in  case  of  extreme 
cruelty  will  the  law  interfere.  The  father  may  take  the  earn- 
ings of  his  minor  child  and  is  liable  for  his  support.  It  is 
easily  apparent  that  domestic  happiness  is  not  dependent  to 
any  marked  degree  on  the  legal  rules  applicable  to  the  rela- 
tions of  members  of  the  family.  The  interference  of  courts  in 
domestic  concerns  seldom  promotes  concord  or  happiness. 
The  promptings  of  love,  the  mutual  interests,  the  wholesome 
teachings  of  the  elders,  and  all  the  pure  and  refining  influences 
that  nature  breeds  in  the  home  of  a  well  mated  couple,  are 
vastly  more  potent  and  thorough  in  regulating  the  domestic 
relations,  than  statutes  or  court  judgments  can  possibly  be. 
It  is  only  the  exceptional  household  that  is  in  any  manner 
affected  by  the  rules  of  law  administered  in  the  courts. 

The  old  common  law  idea  of  the  domination  of  the  hus- 
band has  been  discarded,  and  the  tendency  in  the  United 
States  has  been  steady  and  constant  in  the  direction  of  abso- 
lute equality  of  rights  for  wives.  Children  also  have  come  to 
be  looked  upon  as  more  nearly  independent  and  entitled  to 
such  measure  of  freedom  as  they  are  mentally  and  physically 
capable  of,  and  parents  are  expected  to  instruct  and  reason 
with  rather  than  beat  them. 

The  rules  governing  land  tenure  and  the  inheritance  of 
property,  though  so  familiar  in  their  main  features  as  to  be 
generally  accepted  as  natural  laws,  are  purely  artificial  and 
arbitrary.  Absolute  ownership  of  the  soil  is  entirely  a  cre- 
ation of  the  law  maker,  impossible  of  practical  operation  to 
the  extent  the  law  warrants,  namely,  an  absolute  title  in  a  living 
being  to  the  land  for  all  future  time.  There  is  a  manifest 
absurdity  in  conferring  on  a  mortal  man,  limited  to  a  brief 
term  of  life,  dominion  over  that  which  will  remain  substan- 
tially unchanged  for  countless  centuries  to  come.  Nature 
clearly  and  definitely  limits  the  dominion  of  man,  even  over 
his  own  body,  to  the  term  of  his  natural  life,  and  all  control 
exercised  by  him  over  material  things  after  his  death  must 
necessarily  be  through  an  artificial  extension  of  his  will 
through  the  operation  of  a  positive  law.     All  ownership  of 


UNITED  STATES  903 

land  without  actual  occupancy  is  purely  artificial.  In  the 
early  settlement  of  new  districts  nature  indicates  simple  rules 
by  which  the  rights  of  each  comer  are  determined.  He  may 
take  possession  of  so  much  as  he  can  use,  and  the  next  settler 
must  choose  out  of  the  remaining  lands.  Actual  possession 
and  use  establish  the  right.  As  numbers  increase  and  there 
is  no  longer  enough  land  to  satisfy  all  comers,  some  limita- 
tions are  of  necessity  imposed  on  the  claims  of  occupants  and 
it  becomes  necessary  to  make  land  laws.  Of  these  the  world 
presents  a  great  variety.  In  the  United  States  there  is  at 
present  no  limit  whatever  to  the  quantity  one  person  may 
acquire.  Land  is  treated  as  a  merchantable  commodity,  to 
be  bought  and  sold  without  restrictions  other  than  as  to  form. 
The  laws  governing  the  conveyance  of  land,  the  making  and 
recording  of  deeds,  leases,  mortgages  and  other  written  in- 
struments affecting  the  title,  are  all  human  inventions,  based 
on  conceptions  of  expediency. 

The  laws  of  inheritance  are  also  mere  legislative  creations. 
Nature  indicates  that  when  the  occupant  of  a  house  dies  his 
family  should  still  continue  in  possession  of  it,  and  also  that 
the  household  goods  and  furniture  and  the  domestic  animals 
in  his  possession  should  continue  in  the  possession  of  the 
family,  but  nature  fixes  no  law  for  their  division  among 
heirs.  Houses  and  lands  in  the  possession  of  others  as  ten- 
ants of  the  deceased  owner,  if  there  were  no  legal  rules  of 
inheritance,  would  remain  in  the  possession  of  the  actual 
holders,  freed  from  the  claim  of  the  landlord  after  he  ceased 
to  breathe.  The  rules  which  pass  the  landlord's  title  to  others 
are  arbitrary  and  artificial.  To  avoid  conflict  and  confusion 
it  is  necessary  that  some  rules  should  be  established.  In  the 
various  countries  of  the  earth  a  great  variety  of  rules  exists, 
ranging  from  public  inheritance  to  primogeniture,  from  mak- 
ing the  estate  merely  an  addition  to  the  common  property  of 
the  community  to  giving  all  the  land  to  the  oldest  son.  The 
principle  of  passing  dominion  over  a  large  estate  from  father 
to  son  is  identical  with  that  of  the  inheritance  of  political 
power.  In  the  case  of  great  properties  the  public  has  an 
interest  in  their  use  and  management.     The  son  of  a  wise. 


904  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

able  and  just  king  may  be  like  his  father,  but  is  almost  as 
often  stupid,  incompetent  and  dishonest.  Blood  furnishes 
no  sure  guarantee  of  capacity,  especially  as  but  half  comes 
from  the  father,  and  the  heir,  may  exhibit  the  qualities  of 
some  remote  ancestor  on  either  side,  rather  than  those  of  his 
father.  In  the  inheritance  of  property  the  rule  is  that  the 
son  of  a  hard,  grasping,  avaricious  father  is  inclined  to  be 
idle  and  dissolute.  A  very  large  percentage  of  the  smaller 
fortunes  accumulated  by  one  generation  are  dissipated  by  the 
next.  This  is  detrimental  to  the  public  interests,  for  the  heir 
as  a  rule  is  less  industrious,  more  wasteful  and  often  more 
dissolute  than  he  would  have  been  if  started  in  life  knowing 
that  he  must  provide  for  himself.  As  the  laws  of  inherit- 
ance are  purely  of  legislative  creation,  others  framed  on 
radically  different  principles  may  be  made  at  any  time  the 
people  become  convinced  either  of  their  justice  or  expedi- 
ency. Law-makers  seem  to  have  considered  the  question  of 
right  as  a  limited  one,  affecting  only  those  nearly  related  to 
the  deceased  owner  by  blood  or  affinity.  Manifestly  the 
question  is  far  wider.  In  the  case  of  the  multi-millionaire,  on 
whose  properties  thousands  of  laborers  are  employed  and  yet 
more  thousands  are  dependent  for  their  prosperity,  the  ques- 
tion as  to  proper  management  of  the  property  is  of  public 
concern.  It  is  of  great  importance  whether  the  rich  man's 
son  shall  become  the  hereditary  ruler  of  all  the  tenants  and 
laborers  on  his  estate  and  their  offspring,  and  whether  the 
accident  of  birth  shall  confer  through  a  legal  theory  of  title 
dominion  over  many  people.  It  is  a  question  of  prime  public 
importance  whether  laws  of  inheritance  be  established,  which 
shall  deal  justly  with  all  citizens  and  give  each  a  substantially 
equal  share  of  the  earth  and  the  accumulations  of  past  gen- 
erations. Shall  rich  ruling  families  be  differentiated  in  Amer- 
ica, as  they  have  been  in  Europe,  to  ultimately  take  political 
power  as  well  as  title  to  the  land,  or  shall  the  principles  of  our 
system  of  inheritance  be  changed  with  a  view  to  the  preserva- 
tion of  substantial  equality  among  the  citizens  at  the  start, 
leaving  great  wealth  to  be  gained  only  by  meritorious  effort. 
Is  not  wealth  by  inheritance  a  survival  of  chaotic  times  when 


UNITED  STATES  905 

might  made  right?  Has  it  any  support  in  morals  or  expe- 
diency? The  state  is  partial  in  its  treatment  of  its  citizens 
when  its  laws  assign  to  one  child  a  vast  fortune  and  to  another 
nothing,  for  it  is  the  law  alone  that  gives  effect  to  the  will 
of  a  dead  man,  or  assigns  his  estate  to  a  particular  person 
or  heir  when  he  leaves  no  will. 

In  the  books  the  title  of  master  and  servant  is  still  retained 
as  expressive  of  the  relation  of  employer  and  employee.  At 
the  time  of  the  revolution  the  law  in  most  of  the  colonies 
recognized  the  title  of  a  master  to  African  slaves.  The  civil 
war  terminated  slavery.  Since  then  the  theory  everywhere 
has  been  that  personal  service  is  purely  a  matter  of  voluntary 
contract,  except  where  imposed  as  a  punishment  by  the  pub- 
lic for  a  violation  of  some  penal  statute.  The  master  has 
full  liberty  to  hire  such  servants  as  he  desires,  and  the  ser- 
vant may  choose  his  employer  and  refuse  to  work  except  at 
such  wages  as  he  is  willing  to  accept.  In  times  when  all  in- 
dustries are  active  there  is  little  difficulty  in  finding  employ- 
ment and  the  freedom  is  real,  except  as  affected  by  local 
conditions  and  the  organizations  of  capital  and  labor.  In 
periods  of  depression,  however,  large  numbers  of  laborers  are 
discharged  and  can  find  no  new  employer.  The  least  efficient 
of  the  employees  are  first  turned  away  and,  as  industrial  ac- 
tivities diminish,  the  ranks  of  the  unemployed  swell  until 
the  idlers  roam  over  the  country  as  beggars  in  great  num- 
bers. Employers  in  nearly  all  lines  of  manufacturing,  as  well 
as  transportation,  are  year  by  year  forming  larger  and 
stronger  combinations.  The  effort  on  their  part  is  to  ac- 
complish results  with  the  least  expenditure  of  money  for 
labor.  The  general  public  is  the  gainer  by  all  legitimate 
economies  in  the  conduct  of  any  line  of  business,  provided 
it  be  effectually  subjected  to  the  law  of  competition,  but  a 
favorite  means  of  gaining  unearned  wealth  has  long  been  to 
combine  all  competitors  or  destroy  part  of  them,  and,  having 
gained  a  monopoly,  extort  excessive  profits  from  the  general 
public.  Though  monopolies  are  neither  so  numerous  nor  so 
complete  in  the  United  States  today  as  they  were  under  pat- 
ents from  the  crown  in  England  in  the  days  of  Elizabeth, 


9o6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

organizations  which  have  achieved  more  or  less  complete 
monopolies  are  numerous  and  vastly  more  powerful  and 
profitable  now  than  then.  On  the  other  hand  the  laborers 
in  particular  lines  of  employment  have  formed  many  organi- 
zations for  the  purpose  of  protecting  their  interests,  and  in 
some  cases  of  effecting  a  monopoly  of  the  supply  of  labor  in 
a  particular  line  by  excluding  all  except  members  of  their 
organization.  There  is  a  marked  difference  in  the  principles 
on  which  these  opposing  combinations  are  formed.  The  capi- 
talistic organization  is  compact  and  firm.  When  a  corpora- 
tion is  formed  and  its  capital  contributed,  it  does  not  fall  in 
pieces  so  long  as  its  business  proves  profitable.  It  has  unity 
of  purpose  and  of  management.  It  is  capital  that  is  hazarded, 
not  the  persons  or  the  services  of  the  stockholders.  The 
labor  organization,  however,  from  the  nature  of  the  com- 
bination lacks  cohesive  force.  The  laborers  do  not  combine 
their  efforts  to  carry  on  a  business  and  distribute  the  returns, 
they  do  not  contribute  capital,  except  some  small  dues,  they 
do  not  transfer  to  the  organization  any  legal  power  to  com- 
mand their  services.  It  is  doubtful  if  the  law  as  adminis- 
tered by  the  courts  would  tolerate  an  organization  that  did 
so.  Yet  to  place  organized  labor  in  a  position  to  contend 
with  organized  capital  on  equal  terms,  it  would  be  necessary, 
not  only  that  the  legal  power  to  control  the  services  of  all  the 
men  in  the  combination  should  be  conferred  on  a  single  head 
or  board,  but  that  sufficient  capital  should  be  also  acquired  to 
enable  the  laborers  to  live  through  any  period  of  idleness. 
Though  the  members  of  labor  organizations  have  in  many 
instances  exhibited  remarkable  steadfastness  of  purpose  and 
have  endured  great  hardships  to  accomplish  the  purposes  of 
the  organization,  there  is  an  inherent  weakness,  both  in  the 
principles  on  which  such  combinations  are  effected  and  in  the 
poverty  and  consequent  inability  of  the  members  to  follow 
the  directions  of  leaders  when  they  cannot  live  without  wages. 
Though  the  struggles  between  labor  organizations  and  the 
railroad  companies,  mine  owners,  manufacturers  and  other 
great  employers  of  labor  is  a  matter  of  the  highest  public 
concern  and  often  engrosses  public  attention,  comparatively 


UNITED  STATES  907 

little  of  the  time  of  the  courts  is  taken  up  with  such  contro- 
versies. The  title  Master  and  Servant  fills  but  one  hundred 
and  ninety  pages  of  the  Encyclopedia  of  Law.  This  is  not 
an  accurate  gauge  of  the  number  of  suits  in  the  courts  grow- 
ing out  of  that  relation,  most  of  which  are  for  small  balances 
of  wages  in  the  inferior  courts  of  which  no  report  goes  into 
the  books.  The  questions  arising  on  contracts  for  personal 
services  are  comparatively  few  and  simple.  The  courts  merely 
enforce  the  contract  of  the  parties  and,  except  in  a  very  few 
special  cases,  never  attempt  to  compel  the  laborer  to  specifi- 
cally perform  his  contract. 

The  rules  with  reference  to  the  organization  of  corpora- 
tions have  been  greatly  changed  during  the  past  century.  At 
first  a  corporate  charter  was  granted  as  a  special  favor,  and 
the  king  or  parliament  in  England  and  the  legislatures  in 
America  fixed  the  powers  and  privileges  of  the  corporation 
by  the  terms  of  the  charter.  Now  new  special  charters  are 
almost  unknown  and  there  has  been  a  steady  tendency  toward 
allowing  corporations  to  be  formed  to  carry  on  any  business 
that  a  private  citizen  may  conduct.  In  this  respect  the  ten- 
dency has  been  uniformly  in  the  direction  of  abolishing  all 
arbitrary  rules  of  law,  and  also  of  allowing  the  corporations 
to  formulate  rules  in  the  form  of  by-laws  which  determine  the 
relations  of  members,  stockholders,  officers  and  employees. 
Thus  the  supervising  public  agency,  the  political  power,  has 
been  gradually  withdrawn,  and  the  power  of  private  lawmak- 
ing by  the  corporation,  steadily  extended.  This  increased 
freedom  of  organization  is  highly  beneficial.  It  allows  the 
people  to  combine  their  capital,  labor  and  energy  for  useful 
purposes,  and  thereby  achieve  results  which  they  could  not 
accomplish  singly.  Freedom  of  combination  for  laudable 
ends  is  quite  as  essential  to  the  welfare  of  the  people  as  free- 
dom of  individual  action.  Partnerships  and  corporations  are 
methods  of  combinations  in  business  enterprises  requiring 
either  more  capital  or  more  personal  effort  than  one  alone  can 
supply.  The  corporate  form  is  best  adapted  to  great  enter- 
prises, and  the  railroads,  telegraphs,  telephones  and  most  of 
the  great  manufacturing  and  commercial  establishments  have 


9o8  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

been  constructed  through  the  instrumentaHty  of  corporations. 

There  is  no  monopoly  that  could  not  be  destroyed  by  merely 
taking  away  that  on  which  it  feeds,  thus  a  water  or  gas 
monopoly  can  be  destroyed  by  a  combination  of  those  who 
use  the  water  or  gas  to  supply  themselves  through  their  own 
corporate  organization.  If  the  people  along  the  line  of  a 
railroad  were  to  combine,  build  and  use  another  to  the  utter 
exclusion  of  the  old  one,  the  old  railroad  would  cease  to  have 
any  revenue.  The  effort  thus  far  has  been  mainly  to  regulate 
monopolies  by  law  through  the  political  power.  Where  cities 
construct  and  operate  those  utilities  which  are  natural  mon- 
opolies, though  abuses  in  management  occur,  the  ownership 
is  always  in  the  hands  of  those  served,  and  they  at  all  times 
have  the  power  to  correct  them.  Where  a  trade  monopoly  is 
formed,  those  suffering  from  its  extortions  may  relieve  them- 
selves by  combining  and  transacting  the  business  through 
their  own  agency.  The  leading  difficulties  in  the  way  of 
forming  such  combinations  are  mutual  distrust  and  lack  of 
understanding  of  the  principles  applicable  to  such  combina- 
tions. The  field  is  one  so  vast  that  no  one  can  indicate  the 
limit  of  possible  accomplishment.  Although  the  activity  in 
the  organization  of  corporations  is  so  very  great,  none  of 
them  have  reached  anything  like  completeness,  and  the  largest 
are  mostly  objectionable  because  the  principles  by  which  their 
actions  are  governed  are  lacking  in  equity.  Governmental 
systems,  being  merely  of  human  construction,  are  operated 
mainly  by  arbitrary  rules,  founded  on  conceptions  of  expedi- 
ency. In  the  effort  to  regulate  public  affairs  the  powers, 
duties  and  compensation  of  public  officers  and  servants  are 
established  by  fixed  rules,  it  having  been  fully  demonstrated 
in  other  countries  that  undefined  power  will  usually  be  abused. 

There  are  two  leading  purposes  to  be  subserved  by  courts, 
the  first  is  a  public  one,  namely  to  afford  a  peaceful  solution 
of  all  controversies,  and  thereby  prevent  fights  and  bloodshed, 
the  second  is  to  do  justice  between  the  parties.  Most  of  the 
rules  by  which  the  actions  of  courts  are  governed  commend 
themselves  to  the  moral  sense  and  have  been  adopted  to  pro- 
mote justice.    The  desire  to  correct  errors  and  secure  absolute 


UNITED  STATES  909 

fairness,  has,  however,  been  carried  to  such  lengths  in  the 
system  which  now  prevails,  that  the  endless  pleadings,  mo- 
tions, orders,  demurrers,  new  trials,  appeals,  writs  of  error 
and  certiorari,  primarily  invented  with  the  purpose  of  having 
the  cause  presented  clearly  and  of  correcting  every  error  of 
the  trial  court  and  jury,  have  in  fact  resulted  in  such  delays, 
expense  and  real  injustice,  that  radical  remodelling  is  im- 
peratively demanded.  The  idea  has  prevailed  that  supreme 
courts  could  be  made  of  men  so  deeply  versed  in  the  law  and 
of  such  soundness  of  judgment,  that  they  would  not  only  be 
able  to  avoid  making  mistakes  of  their  own,  but  could  correct 
the  errors  of  inferior  courts  and  juries.  The  fact  is  how- 
ever, that  there  are  so  many  technical  rules  of  procedure  to 
be  followed  in  presenting  the  case  to  the  reviewing  court,  so 
many  arbitrary  rules  of  substantive  law  to  be  applied,  and 
such  a  disposition  among  the  judges  of  the  courts  of  last 
resort  to  refine  and  exhibit  their  learning,  that  there  is  little 
in  their  decisions  to  commend  them  to  the  sense  of  justice  of 
the  plain  citizen.  It  may  well  be  doubted  whether  the  verdicts 
of  the  juries  are  not  on  the  whole  far  nearer  just  determina- 
tions of  the  cases  before  them,  than  the  carefully  worked  out 
judgments  of  the  highest  courts.  When  the  delays,  costs  and 
vexations  incident  to  our  long  process  of  determining  a  cause 
are  considered,  they  certainly  more  than  counterbalance  the 
possible  nearer  approximation  it  may  afford  to  a  correct  ap- 
plication of  the  law. 

The  decisions  of  the  private  tribunals  established  by  boards 
of  trade,  exchanges  and  other  commercial  bodies  are  usually 
promptly  given  and  accepted  as  final,  and  are  far  more  satis- 
factory than  the  dilatory  processes  of  the  courts.  The  great 
desideratum  is  a  system  which  will  insure  impartiality,  and 
under  which  the  end  of  litigation  may  be  quickly  reached. 
One  defect  in  the  jury  system  is  that  it  is  required  that  the 
jury  be  taken  from  the  vicinage.  Originally  it  was  supposed 
that  their  knowledge  of  facts  would  aid  them  in  coming  to 
a  right  verdict.  In  the  United  States  it  is  required  that  they 
be  taken  from  the  county  or  district,  but  it  is  also  required 
that  they  shall  have  no  knowledge  of  the  facts.     These  two 


910  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

requirements  are  incompatible.  Jurors  of  the  vicinage  will 
always  have  some  knowledge  of  some  things  affecting  an 
important  case.  Impartiality  being  so  indispensable  to  right 
judgment,  the  jury  should  come  from  a  place  sufficiently  re- 
mote to  be  wholly  unacquainted  with  the  parties  and  the 
facts  of  the  case. 

A  very  illogical  system  is  followed  in  the  determination  of 
questions  of  fact  and  of  law.  The  jury  decides  the  facts  of 
the  particular  case  before  them.  Their  verdict  binds  only  the 
parties  to  that  particular  cause,  yet  the  twelve  men  composing 
the  jury  must  all  agree  on  all  essential  particulars,  or  no  de- 
cision can  be  had.  Successive  juries  must  be  called  till  one 
can  be  found  which  does  agree.  The  supreme  or  other  court 
of  last  resort,  made  up  of  men  specially  trained  and  schooled, 
in  the  law,  decide,  not  merely  what  the  law  is  in  the  particular 
case,  but  make  a  precedent,  binding  on  all  inferior  courts,  and 
generally  so  on  themselves  and  their  successors  in  all  other 
like  causes,  yet  a  bare  majority  of  the  judges  may  decide  the 
cause  and  establish  the  legal  rule,  no  matter  how  strenuously 
the  minority  oppose  it.  This  lacks  little  of  absurdity.  A 
majority  might  well  be  allowed  to  determine  the  facts,  but 
the  rule  of  law  would  seem  to  be  a  most  uncertain  guide,  if 
some  of  the  judges  of  the  highest  court  dispute  its  existence. 
Some  of  the  states  have  adopted  constitutional  amendments 
allowing  nine  jurors  to  find  a  verdict  in  civil  causes  and  in 
practice  this  is  found  to  be  a  great  improvement.  Unanimity 
may  well  be  required  in  criminal  causes  where  punishment  is 
to  be  inflicted.  The  great  defect  in  the  whole  system  seems 
to  lie  in  the  division  of  causes  into  those  to  be  tried  by  a 
judge  alone  and  those  to  be  tried  by  a  judge  and  jury  and  in 
the  attempt  to  complete  a  code  of  laws  by  the  decisions  of 
courts  in  causes  between  private  parties.  A  combination  of 
judge  and  jury  with  power  to  decide  without  appeal  might 
work  as  well  in  practice  as  the  special  private  tribunals  above 
referred  to.  The  Athenian  system  of  juries  made  up  of  a 
vast  multitude,  though  far  too  tumultuous  as  well  as  ex- 
pensive to  be  practicable  here,  suggests  the  idea  of  the  selec- 
tion of  a  list  of  men  of  probity  and  intelligence  to  act  as 


UNITED  STATES  911 

final  judges  in  all  causes.  Perhaps  if  the  parties  were  al- 
lowed to  select  such  of  them  as  they  could  agree  on  or,  if  they 
could  not  agree,  were  required  to  strike  the  objectionable  ones 
from  the  list,  so  as  to  leave  some  convenient  number  to  try 
the  case,  more  satisfactory  results  would  be  obtained  than 
now.  This  is  merely  a  suggestion,  for  it  is  far  easier  to 
point  out  defects  in  an  existing  system,  than  to  devise  one 
which  would  remedy  them  and  work  satisfactorily. 

In  the  nature  of  things  the  rules  giving  jurisdiction  to  and 
regulating  the  procedure  of  courts  are  purely  artificial.  Free- 
dom of  choice  of  arbitrators  and  judges  tends  to  secure  im- 
partiality and  acceptance  by  the  defeated  party  of  the  award. 
The  inherent  difificulties  attending  the  administration  of  jus- 
tice are  such  that  the  ideal  can  never  be  attained  in  practice. 
Facts  necessary  to  right  judgment  are  unknown,  the  memory 
of  witnesses  is  imperfect,  the  ability  to  state  clearly  and  ac- 
curately what  the  witness  knows  is  rare,  jurors  and  judges 
fail  to  understand  the  witness  as  he  means  to  be  understood. 
These  difificulties  inhere  in  the  investigation  of  causes  when 
parties  and  witnesses  are  all  perfectly  fair  and  honest,  when 
they  are  not  so  fraud  and  perjury  may  be  accepted  for  truth 
and  sophistry  for  logic.  Errors  will  be  committed  and  wrong 
judgments  rendered  by  the  best  conceivable  court.  The  real 
gauge  of  advancing  morality  is  not  the  infallibility  of  judges 
or  juries  but  the  habit  of  just  dealings  among  the  people. 
The  percentage  of  transactions  which  are  made  the  subjects 
of  litigation  is  steadily  decreasing,  and  in  the  ideal  state  the 
compulsory  processes  of  courts  would  be  unnecessary.  It  is 
a  fact  of  profound  significance  that  crime  has  diminished  as 
punishments  have  been  made  less  severe.  When  petty  larceny 
and  a  long  list  of  other  minor  ofifenses  were  punished  in  Eng- 
land with  death,  crime  was  rampant  and  society  was  brutal- . 
ized.  When  the  state  ceases  to  take  life  for  any  cause,  the 
sanctity  of  human  life  is  better  respected  by  the  people.  As 
imprisonment  for  debt  and  seizure  for  the  creditor  of  the 
clothing  and  household  goods  of  the  debtor  is  done  away 
with,  a  higher  standard  of  integrity,  founded  on  a  conception 
of  right,  is  established.    Though  the  compulsory  processes  of 


912  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  law  may  not  be  safely  dispensed  with,  a  public  sentiment, 
which  insists  on  just  dealings  and  right  conduct  and  which 
educates  each  rising  generation  to  advanced  morality,  is  the 
best  guarantee  of  social  order. 

Authorities 

The  Histories  of  Bancroft,  Garner,  Lodge,  Watson,  Wil- 
son and  Winsor  have  been  consulted  on  matters  of  history. 
For  the  provisions  of  the  early  colonial  charters  the  published 
charters  have  been  examined,  and  for  the  provisions  of  con- 
stitutions and  statutes  the  official  publications  have  been  used. 


CHAPTER  XXVI 

Modern  Mexico,  Central  and  South  American  States 

South  America  was  discovered  by  Columbus  in  1498  though 
he  did  not  learn  the  extent  of  the  continent.  Following  his 
discoveries  the  Spaniards  devoted  their  attention  mainly  to 
the  West  Indies,  Mexico  and  South  America,  and  within  fifty 
years  thereafter  had  made  conquests  of  those  parts  that  dis- 
played most  gold  and  silver  and  were  inhabited  by  the  most 
advanced  people.  The  purpose  of  the  invaders  everywhere 
was  conquest  and  robbery.  Natives  were  ruthlessly  slaught- 
ered and  their  property  destroyed  or  carried  away  as  suited 
the  caprice  of  the  victors.  The  native  population  of  the  West 
Indies  was  soon  nearly  exterminated.  On  the  main  land 
there  was  great  slaughter  of  people  and  destruction  of  prop- 
erty at  first,  but  later  more  friendly  relations  were  established 
and  there  was  much  intermixture  of  blood  with  the  natives. 
Owing  to  the  number  of  the  Indians  and  the  extent  of  the 
country  over  which  they  were  scattered  most  of  them  survived 
and  their  descendants,  including  full  bloods  and  mestizos, 
constitute  a  large  part  of  the  population  in  all  the  principal 
states.  The  governments  of  the  Mexicans,  Peruvians  and 
other  most  highly  civilized  nations  were  destroyed  and 
Spanish  military  rule  imposed  in  place  of  them.  Along  with 
the  Spanish  armies  came  priests  at  a  time  when  religious 
bigotry  was  most  virulent.  Pope  Sextius  IV  had  established 
the  Holy  Office  in  Spain  in  1478,  fourteen  years  before  Co- 
lumbus made  his  discovery.  The  gloomy  cruelty  of  the  re- 
ligion of  the  Aztecs  in  Mexico  was  well  calculated  to 
stimulate  the  zeal  of  the  Catholic  priesthood,  and  the  Inquisi- 
tion did  bloody  work  in  America  as  well  as  in  Europe.  Some 
conversions  of  natives  were  made  and  in  time  some  of  the 
spirit  of  genuine  Christianity  was  manifested,  but  viewed  at 
large  the  conquest  was  dual  and  the  people  were  subjected  to 

913 


914  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  domination  of  both  a  mihtary  and  a  priestly  despotism. 
Spanish  law  was  introduced  and  Spanish  methods  of  govern- 
ment prevailed  in  all  the  subjugated  countries.  The  ancient 
industrial  organizations  of  Mexico  and  Peru  were  disrupted 
and  no  equally  efficient  systems  put  in  their  places.  Wealth 
was  sought  in  the  mines  of  precious  metals  and  the  natives 
were  enslaved  and  forced  to  work  them.  The  King  of  Spain 
assumed  ownership  of  the  face  of  the  earth,  without  regard 
to  the  occupancy  of  the  natives,  and  parcelled  it  out  to  favo- 
rites in  great  tracts.  In  the  islands  where  the  natives  had  been 
exterminated  African  slaves  wxre  employed  to  till  the  soil, 
but  on  the  main  land  there  were  sufficient  Indians  who  were 
compelled  to  do  it.  Cattle,  horses,  grain  and  fruits  were  in- 
troduced from  Europe,  and  some  improvement  in  agriculture 
resulted  from  Spanish  methods,  but  industrial  development 
along  any  line  was  nowhere  the  leading  purpose  of  the  in- 
vaders. The  search  for  gold  induced  them  to  encounter 
dangers  and  endure  hardships  and  throughout  the  continent 
they  were  very  active  as  explorers  and  pioneers. 

Brazil  was  discovered  by  both  the  Spanish  and  Portuguese 
in  1500,  but  the  Portuguese  gained  ascendency  and  effected 
permanent  settlements  along  the  coast.  The  plan  first  adopted 
by  the  Portuguese  government  was  to  grant  captaincies,  each 
extending  fifty  leagues  along  the  coast  to  those  who  should 
undertake  to  make  settlements.  The  first  captaincy  was  lo- 
cated at  S.  Vincente  in  1531,  and  others  followed,  so  that  by 
1549  they  were  of  such  importance  as  to  induce  the  crown 
to  establish  a  governor-general  at  Bahia.  Rio  de  Janerio  was 
settled  in  1567.  The  early  settlements  of  Brazil  differed  from 
those  of  the  Spanish  colonies  in  the  purposes  of  the  settlers, 
which  were  to  cultivate  the  soil  and  raise  live  stock  rather 
than  search  for  gold.  This  may  have  been  due  to  the 
•fact  that  the  natives  of  the  coast  of  Brazil  did  not  display 
gold  and  silver  as  the  Peruvians  did,  rather  than  to  a  differ- 
ence in  the  characters  of  the  Spanish  and  Portuguese.  Be 
this  as  it  may  the  subsequent  development  of  the  different 
colonies  shows  the  difference  between  the  prosperity  resulting 
from  the  mere  acquisition  of  gold  by  robbery  and  that  which 


MEXICO,  CENTRAL  AND  SOUTH  AMERICA  915 

follows  useful  industry,  cultivation  of  the  soil  and  the  breed- 
ing of  cattle,  horses  and  sheep.  The  gold  so  long  as  it  was 
retained  produced  nothing  and  neither  fed  nor  clothed  the 
possessor.  It  could  be  used  in  making  purchases  once,  and 
once  only.  The  sugar  and  coffee  plantations  and  the  flocks 
and  herds  on  the  grass  lands  grew,  multiplied  and  year  by 
year  yielded  larger  returns.  Nature  multiplied  the  rewards 
of  industry  and  thrift  and  passed  them  on  to  succeeding 
generations,  but  the  gold  of  the  conquerors  was  sterile.  But 
the  Portuguese  were  not  content  with  the  proceeds  of  merely 
their  own  labors.  They  enslaved  the  natives  and  imported 
great  numbers  of  slaves  from  Africa.  Their  prosperity  how- 
ever was  seriously  handicapped  by  trade  restrictions  imposed 
by  the  Portuguese  government,  which  prohibited  all  direct 
dealings  with  other  nations.  In  1578  Portugal  and  its  Ameri- 
can possessions  passed  under  the  dominion  of  the  Spanish 
crown  and  so  continued  till  the  restoration  of  the  royal  house 
of  Portugal  in  1640,  after  which  Brazil  was  again  a  Portu- 
guese dependency.  There  was  some  fighting  with  British, 
Dutch  and  French  rivals  as  v/ell  as  with  the  natives,  but  the 
Portuguese  seem  to  have  been  more  successful  in  establishing 
friendly  relations  with  the  native  tribes  than  the  others  and 
were  able  to  hold  their  ground. 

As  a  consequence  of  the  invasion  of  the  Iberian  Peninsula 
by  the  French  under  Napoleon  the  royal  family  of  Portugal 
sailed  for  Brazil  in  1807,  accompanied  by  many  of  the  nobil- 
ity, and  established  the  court  there.  Brazilian  ports  were  then 
opened  to  trade  with  other  nations  and  a  great  impetus  was 
given  to  all  kinds  of  industry.  The  court  was  maintained  in 
Brazil  until  1821,  and  the  unprecedented  situation  of  a  Euro- 
pean kingdom  ruled  from  America  was  presented  in  the  gov- 
ernment of  Portugal  by  the  King  in  Brazil.  The  King  then 
returned  to  Portugal,  leaving  his  son  Dom  Pedro  as  regent 
of  Brazil.  The  political  independence  of  Brazil  was  agitated 
soon  after  the  departure  of  the  king  and  on  Dec.  i,  1822  Dom 
Pedro  was  crowned  Emperor  of  Brazil.  A  constitution  was 
adopted  and  sworn  to  by  the  King  March  25,  1824.  Portugal 
recognized  its  independence  in   1825.     Dom   Pedro  and  his 


9i6  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

son  who  succeeded  him  were  very  popular  as  rulers,  and 
Brazil  escaped  serious  political  disturbances  till  near  the  close 
of  the  century.  But  republican  sentiment  grew  to  such 
strength  that  in  1889  ^  bloodless  revolution  took  place,  the 
royal  fanlily  was  sent  to  Portugal,  and  on  Feb.  24,  1891  a 
republican  constitution  was  adopted  which  established  a  fed- 
eral government  and  erected  the  former  provinces  into  states. 
This  constitution  is  in  some  respects  the  most  advanced  of 
any  yet  adopted. 

Spanish  domination  over  the  rest  of  Latin  America  con- 
tinued until  1 810  when  revolutionary  movements  began  in 
Argentina,  Chile  and  Mexico.  By  the  end  of  twenty  years 
thereafter  Spain  had  lost  substantially  all  her  foothold  on  the 
continent,  but  retained  Cuba  and  Porto  Rico  until  1898. 
From  the  first  conquest  till  the  end  of  Spanish  rule  the  rela- 
tion of  Spain  to  her  American  possessions  was  that  of  a 
distant  military  ruler.  From  sheer  necessity  the  colonists, 
especially  along  the  Rio  de  la  Plata,  were  at  times  forced  to 
effect  military  organizations  of  their  own  for  protection 
against  the  Indians  and  hostile  Europeans,  but  nothing  like 
efficient  local  self-government  was  established  till  after  allegi- 
ance to  Spain  had  been  renounced.  The  superior  civilization 
of  the  natives  of  Mexico  and  Peru  over  those  of  most  other 
parts  of  America  seems  to  have  complicated  the  problem  of 
establishing  settled  free  institutions  rather  than  to  have  sim- 
plified it.  In  Mexico  and  South  America  the  Indians  and 
mixed  races  still  constitute  a  large  majority  of  the  popula- 
tion, but  in  varying  combinations  in  the  different  states ;  thus 
in  Mexico  about  fifty  per  cent  of  the  whole  are  Indians,  thirty 
per  cent  Mestizos,  and  the  remainder  of  Spanish  and  other 
European  stock  with  a  few  Africans  and  Asiatics ;  in  Peru 
fifty-seven  per  cent  are  given  as  Indians,  twenty-three  per 
cent  Mestizos  and  the  balance  Spanish  descendants  with  a  few 
foreigners,  negroes  and  Chinamen;  while  in  Brazil  about 
forty-five  per  cent  are  white,  thirty  per  cent  mixed  white, 
negro  and  Indian  in  varying  combinations,  fifteen  per  cent 
Africans  and  ten  per  cent  Indians.  In  recent  years  there  has 
been  an  influx  of  Europeans,  especially  into  Argentina  and 


MEXICO,  CENTRAL  AND  SOUTH  AMERICA  917 

Chile,  and  Americans  from  the  United  States  are  construct- 
ing Hnes  of  railroad  and  establishing  business  enterprises  and 
combinations  in  increasing  numbers,  so  that  there  is  a  well 
marked  tendency  toward  similar  conditions  with  reference  to 
the  intermixture  of  the  people  from  all  parts  of  the  world 
under  free  institutions  to  those  in  the  United  States.  But 
in  the  United  States  the  Indians  are  now  negligible  as  a  politi- 
cal element,  while  throughout  Latin  America  they  are  still 
dominant  in  many  parts  and  in  fact  furnish  the  leaders  in 
many  of  their  struggles.  The  superior  industry  and  thrift  of 
the  southern  races  has  enabled  them  to  survive  in  contact  with 
the  whites,  notwithstanding  the  oppression  to  which  they  have 
been  subjected,  while  the  indolent  and  improvident  northern 
tribes  have  faded  away. 

A  Spanish  settlement  was  made  in  Jamaica  in  1509,  in  Cuba 
in  1 511,  and  in  Venezuela  in  1520;  Mexico  was  conquered  in 
1519,  Peru  in  1532,  and  Buenos  Ayres  was  founded  in  1535. 
It  was  not  till  1607  that  the  English  effected  their  first  perma- 
nent settlement  in  the  United  States.  Spanish  dominion  was 
asserted  over  a  territory  of  more  than  double  the  extent  of  the 
present  continental  possessions  of  the  United  States  at  a 
period  almost  a  century  before  the  settlement  of  the  United 
States  commenced,  yet  the  total  population  of  Latin  America, 
including  the  descendants  of  the  native  races,  is  less  than 
two-thirds  that  of  the  United  States.  The  difference  in  the 
progress  of  the  northern  and  southern  countries  is  a  theme 
worthy  of  extended  study,  but  it  can  be  given  only  brief 
consideration  in  this  work.  The  Spanish  colonies  all  started 
as  dependencies  of  the  Spanish  crown  ruled  by  viceroys  and 
military  force,  while  the  British  colonies  were  planted  under 
charters  encouraging  organization  for  self -protection  and 
local  self-government.  Spanish  favorites  were  granted  vast 
tracts  of  land,  and  so  long  as  Spanish  rule  continued  the  in- 
habitants were  divided  into  a  few  rich,  a  multitude  of  poor 
and  a  small  middle  class.  In  the  British  colonies  there  were 
some  large  grants  of  land,  but  small  farms  tilled  by  the  own- 
ers were  the  rule,  especially  in  New  England.  Illiteracy  was 
the  rule  in  Latin  America  and  learning  was  confined  to  the 


9i8  EVOLUTION  OF  GOVERNME-NTS  AND  LAWS 

few  and  mainly  of  the  priestly,  religious  sort,  while  in  the 
north  it  was  more  general  and  rigidly  Puritan  in  New  Eng- 
land. At  the  time  of  the  revolt  of  the  British  colonies  there 
were  more  Europeans  in  Latin  America  than  in  those  colonies 
but  they  were  distributed  over  a  much  greater  territory,  ex- 
tending from  Santa  Fe,  New  Mexico  to  the  settlements  in 
Chile  and  Argentina.  The  West  Indies  then  produced  sugar, 
tobacco  and  other  products  to  which  they  were  especially 
adapted  in  such  quantities  as  to  make  trade  with  them  a  mat- 
ter of  importance;  the  plains  of  the  southern  half  of  South 
America  offered  pasturage  without  limit  and  Brazil  was  al- 
ready noted  for  its  coffee.  Though  gold  and  silver  from  the 
mines  continued  to  allure  the  Europeans,  the  value  of  the 
products  of  agriculture  and  the  herds  far  exceeded  that  of 
the  mines. 

The  ships  which  transported  the  precious  metals  from  the 
Spanish  colonies  were  tempting  prizes,  and  pirates  infested 
the  southern  seas  and  found  secure  hiding  places  on  the 
islands  and  along  the  coasts.  The  code  of  morals  of  the 
Spanish  conquerors  which  was  applied  in  dealing  with  the 
natives  answered  the  requirements  of  the  pirates  in  their 
operations.  The  West  Indies  were  coveted  by  other  European 
powers:  dominion  over  them  was  determined  by  the  law  of 
might,  and  Spain  was  unable  to  hold  all  of  them.  In  Mexico 
the  authority  of  Spain  was  maintained  without  serious  diffi- 
culty till  the  revolution,  but  in  South  America  there  were 
many  serious  conflicts  with  the  natives  and  occasional  wars 
over  the  conflicting  claims  of  Europeans. 

In  1810  the  spirit  of  revolt  broke  out  in  Mexico,  Argentina, 
Chile  and  other  parts  of  America,  and  continued  to  spread 
and  grow  in  force  till  an  end  was  put  to  the  authority  of 
Spain  in  all  of  her  continental  possessions.  Republics  were 
established  with  constitutions  modelled  after,  though  differ- 
ing in  some  particulars  from,  that  of  the  United  States,  but 
the  people  were  not  able  to  rid  themselves  at  once  of  the  evils 
of  military  rule.  The  necessity  for  the  long  struggle  to  gain 
orderly  liberty  arose  from  accepted  legal  theories  of  prop- 
erty, the  structure  of  society  and  the  characteristics  of  the 


MEXICO,  CENTRAL  AND  SOUTH  AMERICA  919 

people.  Royal  grants  had  given  dominion  to  favorites  over 
vast  tracts  of  land,  and  the  multitude  of  the  poor  v^ere  virtu- 
ally slaves.  There  was  no  common  school  system  and  only 
the  children  of  the  rich  were  educated.  What  is  commonly 
termed  the  middle  class  was  wholly  wanting  on  the  great 
estates  and  few  in  numbers  anywhere.  Trade  developed  as 
products  of  the  land  increased,  but  there  was  little  tendency 
to  improve  on  primitive  methods  of  manufacturing  coarse 
fabrics  and  crude  implements.  There  were  no  great  business 
combinations  establishing  common  interests  or  educating  to 
concert  of  action  in  peaceful  pursuits.  Such  conditions  have 
always  invited  the  combinations  of  the  robber  and  military 
adventurer.  Where  the  avenues  of  success  in  legitimate  in- 
dustry seem  closed  or  surrounded  with  intolerable  difficulties, 
the  warlike  instincts  of  the  savage  assert  themselves  and 
bold  spirits  lead  reckless  followers  in  attempts  to  substitute 
their  forcible  mastery  for  that  asserted  under  the  law.  While 
nature  offered  the  most  bounteous  provisions  for  human  wel- 
fare throughout  the  continent,  the  relations  of  men  to  each 
other  were  such  as  to  entail  misery  and  suffering  on  a  large 
part  of  the  people  during  much  of  the  time. 

Notwithstanding  these  untoward  conditions  able,  educated 
men  disseminated  high  ideals  of  political  organization 
throughout  Latin  America  and  governments  were  established 
based  on  principles  of  liberty,  equality  and  law.  The  strug- 
gle to  overcome  the  unsocial  conditions  has  been  long  and 
often  discouraging,  but  of  late  the  progress  in  all  the  leading 
states  of  South  America  has  been  most  marked  and  gratify- 
ing. Following  the  establishment  of  republics  immigration 
from  all  the  nations  of  Europe  was  encouraged  and  the  pro- 
cess of  making  new  states  out  of  a  combination  of  vigorous 
people  of  different  nationalities,  all  admitted  on  an  equal 
footing,  has  gone  on  with  constantly  accelerating  speed. ,  Co- 
lombia led  in  the  line  of  education  and  established  a  com- 
pulsory school  system  in  1870,  and  the  other  states  have 
made  much  progress  in  establishing  educational  institutions. 
The  element  of  educated  people  above  immediate  want,  yet 
under  the  necessity  of  being  useful,  is  growing  steadily  in 


920  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

numbers  and  influence.  While  many  of  the  rich  have  grown 
vastly  richer  from  the  general  prosperity,  the  ratio  of  the 
abjectly  poor  has  been  materially  diminished.  The  process 
with  which  we  are  so  familiar  in  the  United  States  of  organ- 
izing large  industries,  importing  great  numbers  of  cheap 
laborers  for  the  rough  work  connected  with  them,  educating 
them  and  their  children  and  soon  seeing  them  self-reliant 
and  often  leading  citizens  is  now  fairly  under  way  in  the 
leading  South  American  states.  This  process  has  been  viewed 
with  much  apprehension  in  the  United  States  and  has  its  dis- 
advantages, but  the  prejudices  which  have  been  manifested 
successively  against  Irish,  German,  Scandinavian,  Italian, 
Pole,  and  Russian  laborers  have  given  way  one  by  one,  and 
their  children  are  taken  into  full  fellowship  as  American  citi- 
zens with  little  or  no  discrimination  against  them  on  account 
of  the  nationality  of  their  parents.  The  problem  of  assimi- 
lating Africans  and  Asiatics  is  one  of  more  difficulty,  but 
education  and  even  handed  justice  are  found  to  be  all  that  is 
necessary  to  render  it  possible  for  all  races  to  become  mutu- 
ally helpful  and  prosperous. 

After  a  century  of  effort  to  establish  orderly  popular  gov- 
ernment the  South  American  states  are  enjoying  general  tran- 
quillity and  prosperity,  and  in  some  particulars  lead  rather 
than  follow  the  march  of  civilization.  Mexico  was  afflicted 
with  almost  constant  civil  war  from  the  revolt  of  1810  till 
the  accession  of  Diaz  in  1884.  He  maintained  order  and  ob- 
served the  forms  of  constitutional  government  without  much 
regard  to  the  substance.  Through  requirements  of  unobtain- 
able proofs  of  title  to  lands  his  government  confiscated  the 
holdings  of  multitudes  of  poor  peasants  for  the  enrichment 
of  favorites.  He  encouraged  the  investment  of  foreign  capi- 
tal, and  during  his  long  rule  many  miles  of  railroad  were  built 
and  many  new  industries  established,  but  all  on  the  insecure 
basis  of  a  vast  multitude  of  illiterate  homeless  poor,  at  the 
mercy  of  either  great  landholders  or  corporations,  with  re- 
liance on  military  force  to  preserve  order.  Following  his  re- 
election in  1 9 10  a  revolution  caused  him  to  leave  the  country, 
and  on  May  25,  191 1,  Francisco  I.  Madero  became  provisional 


MEXICO,  CENTRAL  AND  SOUTH  AMERICA  921 

president.  Since  the  overthrow  of  Diaz  the  weakness  of  the 
social  structure  of  Mexico  has  again  become  apparent.  There 
are  not  enough  people  schooled  in  the  principles  of  govern- 
ment and  devoted  to  social  order  to  curb  the  ambitions  of 
immoral  leaders.  The  brief  career  and  tragic  death  of  Madero 
and  the  subsequent  struggles  of  rival  leaders  give  again  a 
most  unhappy  illustration  of  the  evils  attending  ignorance 
and  oppression.  The  progress  in  industrial  development 
which  had  been  made  is  not  merely  at  a  stand  still  but  retro- 
gression has  set  in.  The  task  of  establishing  order  and  justice 
through  the  popular  elements  as  they  now  exist  is  one  of 
great  difficulty,  but  real  progress  can  only  come  through  a 
public  sentiment  that  condemns  the  bloodshed  and  robbery 
that  has  become  prevalent,  and  the  organization  of  a  public 
force  sufficient  to  maintain  order  and  used  for  the  protection 
of  rights  instead  of  the  perpetration  of  wrongs. 
»  The  Latin  American  states  all  have  constitutions  framed 
on  the  general  lines  of  that  of  the  United  States,  but  most  of 
them  are  much  more  elaborate  in  details.  All  distribute  the 
governmental  powers  among  three  separate  departments,  ex- 
ecutive, legislative  and  judicial,  with  a  president  as  executive 
head,  two  houses  in  the  legislative  branch  and  judges  inde- 
pendent of  both.  Councils  of  State  variously  composed,  un- 
der different  names  and  with  differences  in  powers  and 
functions  are  provided  for  in  the  constitutions  of  Chile, 
Mexico,  Colombia,  Ecuador  and  Peru.  There  are  differences 
in  the  terms  of  office,  thus  in  Venezuela  the  term  of  the  presi- 
dent is  two  years,  in  Mexico,  Brazil,  Ecuador  and  Honduras 
it  is  four  years,  in  Chile  five,  and  in  the  Argentine  Republic 
and  Colombia  six  years.  The  terms  of  deputies  or  repre- 
sentatives are  two  years  in  Ecuador  and  Mexico,  three  years 
in  Brazil  and  Chile  and  four  years  in  the  Argentine  Republic, 
Colombia,  Venezuela  and  Honduras,  and  of  senators  four 
years  in  Mexico,  Equador  and  Venezuela,  six  years  in  Colom- 
bia and  Chile  and  nine  years  in  Brazil  and  the  Argentine  Re- 
public. Judges  of  the  highest  courts  have  terms  of  four  years 
in  Venezuela,  and  Honduras,  six  years  in  Mexico  and  Ecua- 
dor and  during  good  behavior  in  the  Argentine  Republic, 
Brazil,  Colombia  and  Chile. 


922  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

The  constitutions  of  Chile  of  1833  and  of  the  Argentine 
RepubHc  of  i860  abolished  slavery  and  prohibited  the  slave 
trade  at  times  when  slavery  was  the  most  noticeable  institu- 
tion maintained  by  law  in  nearly  half  of  the  United  States. 
The  more  recent  constitutions  also  show  the  march  of  ideas 
and  contain  good  provisions  not  to  be  found  in  that  of  the 
United  States.  The  constitution  of  Brazil  abolishes  the  death 
penalty  except  under  military  law  in  time  of  war,  and  that  of 
Venezuela  abolishes  it  without  any  reservation*  On  the  sub- 
ject of  waging  war  Brazil  has  the  honor  of  taking  the  most 
advanced  ground  in  its  fundamental  law  of  any  nation.  Arti- 
cle 88  reads:  "The  United  States  of  Brazil  shall  in  no  case 
undertake  a  war  of  conquest  directly  or  indirectly  of  them- 
selves or  in  alliance  with  another  nation."  Congress  is  em- 
powered "to  authorize  the  government  to  declare  war,  if 
there  is  no  opportunity  for  arbitration  or  if  arbitration  has 
failed,  and  to  make  peace."  The  five  Central  American  States 
in  1908  established  the  Central  American  Court  of  Justice 
under  a  treaty  which  binds  them  to  submit  to  its  judgment 
"all  controversies  or  questions  which  may  arise  among  them 
of  whatsoever  nature,  and  no  matter  what  their  origin  may 
be,  in  case  the  respective  departments  of  foreign  affairs  should 
not  have  been  able  to  reach  an  understanding."  Kings  and 
hereditary  rulers  of  all  kinds  may  regard  it  as  inexpedient  for 
them  to  abstain  from  the  use  of  military  force  to  further  their 
ambitions,  but  the  interests  of  the  people  and  the  moral  law 
are  always  opposed  to  war.  It  is  the  interests  of  rulers  and 
privileged  classes  only  that  are  likely  to  be  adversely  affected 
by  the  judicial  settlement  of  all  international  disputes.  The 
welfare  of  the  whole  people  of  all  of  the  nations  would  be 
promoted  by  a  universal  treaty  of  arbitration  similar  to  that 
of  the  Central  American  States. 

Argentina,  Chile  and  Ecuador  support  the  "Apostolic  Ro- 
man Catholic  church"  and  Colombia  recognizes  its  right  to 
administer  its  own  affairs  but  without  formal  recognition  as 
the  religion  of  state.  The  constitution  of  Mexico  provides, 
"The  state  and  church  are  independent  of  one  another.  The 
congress  may  not  pass  laws  establishing  or  prohibiting  any 


MEXICO,  CENTRAL  AND  SOUTH  AMERICA  923 

religion,"  and  "The  simple  promise  to  speak  the  truth  and 
to  comply  with  the  obligations  which  have  been  incurred, 
shall  be  substituted  for  the  religious  oath,  with  its  effects  and 
penalties."  That  of  Brazil  contains  the  following:  "No  cult 
or  church  shall  receive  an  official  subsidy  nor  have  relation 
or  dependence  or  alliance  with  the  government  of  the  Union 
or  of  the  states." 

Viewed  as  a  whole  the  recent  progress  of  the  Latin  states 
has  been  quite  rapid.  Steadily  advancing  moral  standards 
are  being  adopted  and  the  curse  of  war  is  less  frequent  in  its 
visitations.  The  Argentine  Republic,  Brazil  and  Chile  espe- 
cially exhibit  growing  industries  and  commercial  activities 
and  an  inclination  to  seek  all  that  is  best  in  improved  sys- 
tems of  organization,  not  for  the  destruction  of  mankind  by 
war  but  to  benefit  them  through  combinations  for  good 
purposes. 

Authorities 

Glynn :     Foreign  Constitutions. 

Dodd:     Modern  Constitutions. 

Baldwin:    The  New  Era  of  International  Courts. 


GENERALIZATIONS 


I.  Poverty  of  History 


The  earliest  records  that  have  come  down  to  us  are  those 
of  the  Egyptians,  Babylonians,  Aryan  invaders  of  India,  and 
Chinese.  Each  of  these  people  had  their  own  written  lan- 
guage, that  of  the  Chinese  being  so  radically  different  from 
the  others  as  to  indicate  no  probability  of  suggestion  from 
the  others.  The  others  bear  no  close  resemblance  to  each 
other,  yet  may  all  have  been  outgrowths  from  the  same  primi- 
tive suggestion.  All  dwelt  between  the  twentieth  and  thirtieth 
degrees  of  north  latitude  and  all  were  Asiatics,  except  the 
Egyptians  who  inhabited  a  small  district  in  the  northeast 
corner  of  the  African  continent.  The  extent  of  the  countries 
inhabited  by  them  and  the  Israelites  and  other  tribes  with 
whom  the  Egyptians  and  Babylonians  came  in  contact  and 
of  whom  we  have  any  very  early  account  could  not  have  ex- 
ceeded one-tenth  the  area  of  Asia.  We  have  no  records  of 
any  other  people  extending  back  to  even  one  thousand  years 
B.C.  We  have  no  knowledge  of  the  governments  or  laws  of 
the  people  who  dwelt  in  the  balance  of  Asia  and  Africa,  or 
in  any  part  of  Europe  or  America  prior  to  that  time.  Greek 
and  Roman  records  take  us  back  less  than  three  thousand 
years,  less  than  one  hundred  generations  of  men.  When  we 
consider  how  slowly  the  art  of  writing  and  reading  was 
disseminated  and  the  state  of  comparative  isolation  in  which 
the  various  people  dwelt,  it  is  not  surprising  that  the  lessons 
to  be  drawn  from  very  early  times  are  so  meager.  The 
Chinese  constructed  a  written  language  and  a  theory  of  gov- 
ernment and  system  of  laws  under  which  one-fourth  of  the 
people  on  the  earth  now  live.  At  the  other  end  of  the  line 
of  early  civilization  the  Egyptians  in  a  far  smaller  country 
produced  their  peculiar  civilization.  Each  of  these  people 
were  substantially  isolated   from  the  rest  of  the  world  for 

924 


GENERALIZATIONS  925 

long  periods  of  time  and  were  able  to  live  in  peace  in  a  very 
fertile  country  substantially  secure  from  outside  foes  under 
conditions  favorable  to  the  study  of  agriculture  and  the  arts. 
Babylon  was  also  located  in  a  very  fertile  valley  and  flourished 
for  a  long  time,  but  was  always  exposed  to  attacks  from  with- 
out, and  finally  went  down  before  the  Persians.  The  con- 
querors of  India  maintained  their  ascendency  by  their  arms 
and  religious  teachings  and  still  preserve  their  caste  superi- 
ority. The  idea  of  government  generally  entertained  by  all 
these  people  throughout  all  the  ages  was  unlimited  paternal 
power  m  a  single  monarch,  who  however  was  expected  to  rule 
in  arcnrdanre  with  established  laws.  All  authority  centered 
in  and  emanated  f  romthe  king!  No  great  representative  body 
was  chosen  by  the  people  to  express  their  views  or  check  the 
abuses  of  power.  In  their  religious  and  classical  books  the 
Chinese  and  Brahmans  expressed  just  sentiments  concerning 
the  legitimate  functions  of  government,  but  they  failed  to 
devise  effectual  checks  to  prevent  the  abuses  of  power. 

The  record  of  European  civilization  starts  with  the  Greeks 
and  Romans  and  at  a  period  very  much  later  than  that  of  the 
Egyptians,  Babylonians  and  Chinese.  The  accessible  accounts 
of  their  public  doings  are  much  more  full,  and  their  influence 
on  western  civilization  has  been  much  more  potent.  While 
the  Greeks  tried  many  experiments  and  exhibited  wonderful 
brilliancy  and  vigor,  their  governmental  structures  were  rela- 
tively small  and  shortlived.  The  Romans  were  more  success- 
ful and  steadily  extended  their  system  of  government  and 
laws  till  it  covered  southern  and  western  Europe,  northern 
Africa  and  Asia  Minor.  Their  empire  went  to  pieces  before 
the  onslaughts  of  the  northern  and  eastern  tribes  and  the  ter- 
ritory covered  by  it  is  now  divided  among  the  nations  of 
Europe  and  with  the  Mohammedan  Turks.  Of  the  peculiar 
civilizations  that  developed  in  Mexico,  Central  America  and 
Peru  we  have  no  native  historical  accounts,  and  the  European 
observers  saw  them  for  only  a  short  time.  They  had  no  writ- 
ten language  but  the  Mexicans  had  made  some  progress  in 
picture  writing  and  the  Peruvians  used  the  quipu  for  records 
and  messages.     Their  civilization  developed  in  isolation  and 


926  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

SO  far  as  we  know  without  being  influenced  by  suggestions 
from  without. 

Since  the  discovery  of  America  and  of  the  ocean  routes  to 
India  and  the  far  east,  new  conditions  have  existed  and  the 
people  of  the  various  countries  have  from  time  to  time  felt 
the  force  of  external  impulses.  Instead  of  delving  into  do- 
mestic history  for  precedents  in  the  structure  of  governments, 
contemporaneous  examples,  adapted  to  modern  needs  and 
conditions  are  now  more  regarded  by  the  people  of  every 
nation. 

2.  Methods  of  Acquiring  and  Conferring  Political 

Power 

The  influence  which  operates  most  powerfully  and  swiftly 
in  promoting  concert  of  action  for  public  purposes  is  war, 
present,  threatened  or  contemplated.  The  exigencies  of  war 
demand  combination  of  all  those  having  common  interests 
and  concentration  of  authority  to  direct  the  movements  of 
all  in  a  single  head.  The  most  primitive  political  power  is 
that  of  the  leader  of  a  tribal  war  party.  Such  leaders  have 
been  found  everywhere  and  in  all  ages  among  savage  tribes. 
The  duration  of  the  leadership  has  depended  on  his  capacity, 
the  needs  of  the  tribe  and  their  wishes  and  purposes.  The 
leader's  authority  over  people  in  the  hunter  state  rarely  ex- 
tends beyond  his  immediate  tribe.  Pastoral  and  agricultural 
people  who  can  make  provision  for  the  support  of  larger 
bodies  of  men  for  longer  periods  effect  larger  and  more 
permanent  combinations.  The  general  rule  has  been  that 
the  larger  the  combination  the  more  arbitrary  and  despotic 
the  power  of  the  leader.  Ignorance,  illiteracy,  poverty  and 
inadequate  means  of  communication  limit  and  condition  the 
extension  of  power.  So  far  as  we  are  informed  the  only 
large  combinations  evolved  in  America  by  the  aborigines 
were  those  in  Mexico  and  Peru  where  the  people  had  made 
much  progress  in  agriculture  and  manufactures  and  in  build- 
ing, roads,  the  transmission  of  messages  by  runners  and  pic- 
ture and  sign  language.  The  earliest  known  Egyptian  and 
Asiatic   conquerors   were   backed   by   industrious   multitudes 


GENERALIZATIONS  927 

who  provided  for  their  armies,  and  knew  the  use  of  written 
words.  Numberless  mihtary  despotisms  over  more  or  less 
extensive  territories  have  been  superimposed  on  existing  sys- 
tems of  government  by  rnilitary  leaders,  of  whom  Alexander, 
Caesar,  Charlemagne,  Genghis  Kahn  and  Napoleon  are  con- 
spicuous examples.  The  common  characteristic  of  all  such 
leaders  has  been  ruthless  destruction  of  human  life  to  further 
the  ambition  and  often  to  gratify  the  malice  of  the  leader. 

The  patriarchal  idea  of  government  typified  by  that  of  the 
imperial  government  in  China  and  which  prevailed  quite  gen- 
erally throughout  Asia,  though  despotic  in  character,  was  in 
some  measure  an  outgrowth  of  the  multiplication  of  families 
and  tribes  by  natural  increase  and  the  extension  of  the  author- 
ity of  the  patriarch  over  the  enlarged  family.  The  power  of 
the  patriarch  has  usually  been  supplemented  by  military  force 
as  occasion  has  been  presented  until  the  great  kingdom  or 
empire  has  been  established.  Military  force  has  been  the 
main  instrument  employed  in  the  formation  and  perpetuation 
of  most  of  the  great  governments  throughout  all  historic 
times. 

Next  in  potency  and  universality  of  employment  have  been 
religious  teachings.  The  religious  beliefs  and  the  supersti- 
tions of  a  people  are  the  prod\icts  of  suggestions  from  their 
environments,  and  of  fear,  desire,  hope,  imagination,  and  in- 
spiration. They  are  gross  and  absurd  or  pure  and  exalted 
according  to  the  capacity  and  character  of  those  who  propose 
them.  In  Peru  and  other  countries  where  cloudless  skies  pre- 
vail the  sun  has  been  adored  as  the  great  life-giving  power. 
The  early  mariners  of  the  Mediterranean  Sea  feared  the 
wrath  of  Neptune,  god  of  the  sea.  In  the  mountains  and 
plains  of  northern  India  Indra,  the  god  of  storms  was  seen  in 
the  tempests.  Among  warlike  people,  the  god  of  battle  under 
a  great  diversity  of  names,  Siva,  Jehovah,  Mars,  Thor,  Allah, 
has  been  called  on  for  aid  in  bloody  strife.  Other  gods  in 
endless  variety  have  been  named  to  meet  the  requirements  of 
the  situations  with  which  tribes  and  nations  have  been  con- 
fronted. That  religious  impulses  are  most  potent  in  influen- 
cing the  conduct  of  the  people  is  patent  to   all   intelligent 


928  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

observers.  This  has  led  crafty  men  in  all  ages  and  countries 
and  in  all  stages  of  social  development  to  use  the  beliefs 
and  superstitions  of  the  people  as  a  means  of  mastery  over 
the  multitude.  Occasionally  a  man  has  appeared  v^ho  could 
drav^  a  multitude  to  his  support  by  advancing  a  new  creed 
or  a  modification  of  an  old  one  like  Mohammed,  but  ordi- 
narily accepted  beliefs  have  been  taken  advantage  of.  The 
methods  of  utilizing  these  beliefs  and  the  special  purposes 
for  v^hich  they  have  been  employed  are  as  varied  as  the  human 
mind  can  readily  conceive.  The  superstitions  of  savages  have 
been  utilized  to  influence  the  actions  of  one  or  a  number  and 
to  gain  merely  a  temporary  or  a  continuing  mastery.  The 
religions  v^^hich  combine  the  purest  ethical  principles  with 
their  beliefs  have  been  found  the  most  serviceable.  Dread 
of  reptiles,  beasts  and  birds  has  led  savages  to  attribute  super- 
natural powers  to  them  and  people  so  highly  civilized  as  the 
ancient  Egyptians  and  Hindoos  have  deified  them.  The 
Chinese  dragon,  the  grififin  and  other  imaginary  monsters  are 
fanciful  extensions  of  the  pantheon.  Whatever  the  particular 
form  of  the  superstition,  the  medicine  man  or  the  priest 
claims  special  relations  and  influence  with  the  supposed  super- 
natural power,  teaches  the  multitude  that  such  relation  exists, 
magnifies  its  potency,  claims  ability  to  use  it  for  their  good 
or  ill  here  or  hereafter,  and  induces  obedience  to  him  through 
hope  and  fear  of  the  supernatural  and  incomprehensible. 

In  the  more  advanced  states  of  society  religious  domina- 
tion has  been  at  times  distinct  from  the  secular,  but  far  more 
frequently  in  combination  with  it.  The  combinations  have 
taken  a  variety  of  forms.  The  early  Brahman  priests  com- 
bined with  the  military  order  of  their  race  to  secure  their 
ascendency.  The  priests  taught  the  mysteries  of  their  reli- 
gion, the  superiority  of  their  caste,  the  secular  power  of  the 
military  men  and  the  duty  of  all  others  to  respect  Brahmans 
and  Cshatriyas.  Moses  led  the  children  of  Israel  with  the 
aid  of  Aaron  as  his  mouthpiece  in  religious  instruction.  The 
Greeks  consulted  their  oracles,  some  of  the  most  noted  of 
which  professed  complete  independence.  The  Church  of 
Rome  has  ruled  mainly  by  the  use  of  ecclesiastical  expedients, 


GENERALIZATIONS  929 

but  always  with  some  aid  from  the  temporal  powers  and  at 
times  by  the  use  of  mihtary  force.  Most  of  the  great  and 
enduring  despotisms  have  closely  combined  a  priestly  system 
with  military  power.  In  the  Chinese,  Mohammedan,  Russian 
and  ancient  Peruvian  empires  there  was  strict  identity  of  head 
in  ecclesiastical  and  temporal  government.  The  emperor,  the 
caliph,  the  czar  and  the  inca  were  each  at  the  same  time 
supreme  representatives  of  the  overruling  spiritual  being  and 
fountains  of  all  temporal  power  in  their  dominions.  Though 
the  taboo  among  Polynesians  and  the  gross  superstitions  of 
African  and  American  savages  have  been  used  with  great 
effect,  they  have  never  afforded  a  foundation  for  the  erection 
of  any  great  or  enduring  empire.  The  greatest  priestly  com- 
binations have  been  built  on  more  lofty  religious  conceptions. 
Chinese  philosophy  and'  the  religious  teachings  of  Gautama 
have  been  utilized  in  combination  with  some  gross  supersti- 
tions in  maintaining  rulership  over  the  Chinese  multitudes. 
Mohammed,  the  image-breaker  and  apostle  of  one  living  God, 
propagated  the  word  by  the  sword  with  irresistible  power  and 
sought  to  forcibly  reform  many  prevailing  abuses.  The  Czar 
as  the  head  of  the  Greek  church  has  led  his  armies  and  wielded 
his  bloody  despotic  powers  in  the 'name  of  the  meek  and 
lowly  Prince  of  Peace.  The  Inca  as  the  high  priest  of  the 
Sun  stood  at  the  head  of  the  religious  establishment  and  was 
at  the  same  time  possessed  of  all  temporal  power.  The  Greeks 
and  Romans  in  accordance  with  their  democratic  ideas  took 
the  gods  of  all  the  peoples  into  their  Pantheon,  and  the  Greeks 
especially  allowed  their  gods  to  take  opposing  sides  in  their 
conflicts  and  war  with  each  other.  Though  the  Romans  con- 
sulted their  priests  and  augurs  and  paid  great  regard  to  re- 
ligion, the  secular  power  dominated  till  the  fall  of  the  empire. 
The  Papal  power,  extending  over  Europe,  into  Asia  and 
Africa  and  then  America  is  unique  in  character.  Its  basis  is 
the  same  as  that  of  the  Greek  church,  but  it  has  stood  through 
so  many  centuries  as  a  power  apart  from  and  much  of  the 
time  superior  to  the  soverigns  of  the  Catholic  nations.  Kings 
and  emperors,  while  claiming  unlimited  temporal  power,  have 
acknowledged  the  spiritual  mastery  of  the  Pope.     Through- 


930  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

out  all  the  dark  ages  the  priesthood  monopolized  nearly  all 
the  learning,  and  temporal  rulers  were  dependent  on  them 
to  teach  the  ignorant  multitude  the  doctrine  of  the  divine  right 
of  kings  to  rule  and  the  religious  duty  of  the  people  to  submit 
and  obey.  In  return  for  this  service  the  kings  gave  them  title 
to  lands  and  allowed  them  to  collect  tithes  and  other  revenues 
for  the  church.  Thus  there  was  a  close  confederacy  between 
the  spiritual  and  temporal  rulers,  giving  mutual  support  to 
each  other's  authority.  The  breaches  between  the  clergy  and 
the  crown  paved  the  way  for  emancipation  from  the  religious 
yoke  and  afterward  for  political  freedom.  In  recent  times 
there  is  a  marked  tendency  to  completely  divorce  church  and 
state. 

The  third  method  of  acquiring  political  power  is  by  the 
voluntary  choice  of  the  people  for  the  accomplishment  of  their 
purposes.    This  method  has  been  far  more  generally  employed 
by  people  in  all  parts  of  the  earth  than  is  commonly  realized. 
The  American  Indians  and  most  other  savages  chose  their 
chiefs  and  determined  most  of  the  important  affairs  of  the 
tribe  in  a  general  council  of  all  the  men.     Democratic  assem- 
blies are  not  strangers  in  the  greatest  despotisms.     In  the  vil- 
lages   of    China    and    Russia    the    people    have    long    been 
accustomed  to  choose  their  head  men  and  manage  their  local 
affairs.     A  similar  village  system  has  long  prevailed  in  India. 
The  ancient  Persian  monarchs  ruled  most  of  their  subjects 
through  a  tribute  system,  and  the  villages  were  free  to  regu- 
late  their   local    affairs   through    the   elders    and    patriarchs 
chosen  or  recognized  by  them.     In  Europe  democratic  insti- 
tutions were  not  limited  to  the  Greek  and  Roman  cities  of 
early  times,  but  were  common  in  the  cities  of  Italy,  Germany 
and  Russia  in  medieval  times.      Strictly   democratic  institu- 
tions were  universally  confined  to  the  people  dwelling  within 
a  city  or  small  district  of  country.     This  resulted  from  the 
necessity  for  consultation  and  public  gatherings  of  all,  which 
was  only  practicable  where  the  people  were  in  close  contact 
with   each   other   and  had   common   interests   and   purposes. 
Though  the  Roman  republic  was  extended  into  distant  prov- 
inces, no  system  of  general  representative  government  was 


GENERALIZATIONS  93i 

built.  The  general  affairs  of  the  republic  were  regulated  from 
Rome,  and  the  local  affairs  in  the  provinces  were  managed 
by  the  people  through  their  domestic  governments.  It  is  still 
impracticable  for  the  multitude  to  gather  from  all  parts  of 
any  large  district  of  country  and  transact  public  business  in  a 
general  assembly  of  all.  Direct  action  of  all  the  people  on 
matters  of  general  policy  has  become  possible  through  the 
aid  of  printing  presses  and  improved  facilities  for  the  trans- 
mission of  information  and  consultation  between  people  dis- 
tributed over  a  large  territory.  We  now  can  act  directly 
through  the  ballot,  not  only  on  constitutions  but  on  general 
laws  of  all  kinds  that  are  referred  to  the  people  for  approval 
or  rejection.  Brief  terms  of  authority  have  been  the  rule  in 
all  democracies.  Great  activity  and  rapid  changes  in  the 
official  system  and  the  purposes  of  the  community  as  well  as 
in  the  persons  chosen  as  leaders  have  occurred  everywhere. 
Diversity  of  conditions  seems  to  render  the  management  of 
purely  local  affairs  a  matter  which  should  be  confided  to  the 
people  concerned.  Outsiders  are  in  no  position  to  act  intel- 
ligently and  have  no  sufficient  motive  for  forming  correct 
judgments  concerning  the  interests  of  other  communities. 
The  number  of  public  questions  as  to  which  the  multitude  can 
inform  themselves  at  any  given  time  is  necessarily  limited  and 
the  highest  measure  of  success  in  popular  government  is  de- 
pendent on  the  submission  of  each  question  to  the  body  of 
voters  or  to  such  representatives  of  them  as  can  give  it  the 
best  consideration  and  will  act  for  the  interest  of  the  people 
concerned. 

It  is  only  in  modern  times  that  popular  government  has 
been  extended  by  the  selection  of  representatives  chosen  to 
act  in  place  of  the  multitude  in  matters  affecting  more  people 
and  larger  district  than  can  meet  in  general  assemblies.  The 
principles  of  representative  government  are  simple  and  readily 
understood.  The  whole  country  is  divided  into  such  prov- 
inces and  districts  as  seem  necessary  or  convenient  'for  the 
regulation  of  their  affairs  and  the  transaction  of  public  busi- 
ness in  them.  The  United  States  of  America  may  perhaps 
justly  claim  to  have  been  the  pioneer  in  forming  a  representa- 


922  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tive  system,  adapted  to  unlimited  extension  among  homo- 
geneous people.  The  ascending  series  of  general  political 
divisions  is  towns,  counties,  states  and  United  States.  The 
people  of  each  of  these  divisions  choose  the  officers  who  con- 
duct the  public  affairs  of  all  the  districts  within  which  they 
are  included.  Aside  from  these  divisions  there  are  the  cities 
with  varied  plans  of  representative  city  government,  judicial 
districts  and  districts  from  which  members  of  the  legislative 
bodies  are  chosen.  While  the  United  States  has  ruled  and 
still  rules  territories  and  dependencies  through  the  general 
government  without  allowing  either  full  local  self-government 
or  representation  in  the  general  government,  such  rulership 
is  outside  of  and  opposed  to  the  general  principles  on  which 
the  government  is  constructed.  The  theory  adopted  in  this 
regard  has  been  that  such  government  has  been  merely  tempo- 
rary and  preparatory  to  the  establishment  of  the  general  sys- 
tem followed  in  the  states.  The  general  government  of  the 
United  States  is  of  limited  powers  conferred  for  general  pur- 
poses by  the  constitution  or  implied  from  it.  All  other  po- 
litical power  is  reserved  to  the  states  and  the  people  thereof. 
The  value  and  efficiency  of  all  these  governmental  agencies 
is  dependent  on  choice  of  representatives.  The  ever  present 
difficulty  is  for  the  people  to  know  which  men  will  act  for  the 
best  interests  of  the  public,  and  which  will  sacrifice  public  to 
private,  corporate  or  party  interests.  Without  the  aid  of 
modern  means  of  communication  and  dissemination  of  in- 
formation these  difficulties,  with  the  present  heterogeneous 
elements  in  our  population,  might  be  insurmountable.  As 
matters  stand  there  is  ample  room  for  great  improvements 
in  our  methods  of  selecting  officials  and  representatives  of 
the  people. 

The  British  Empire  is  constructed  in  accordance  with  far 
more  flexible  theories,  and  can  adapt  its  governmental  ma- 
chinery to  the  varied  stages  of  social  development  from  Afri- 
can savages  to  the  socialistic  colony  of  New  Zealand.  It 
rules  in  India  as  a  military  despotism  and  in  Canada  and 
Australia  allows  full  liberty  of  self-government.  Only  the 
inhabitants  of  the  British  Islands  are  represented  in  the  gen- 


GENERALIZATIONS  933 

eral  government  of  the  empire,  but  the  people  of  the  colonies 
make  their  own  laws  and  conduct  their  home  affairs  with 
practically  no  interference.  Instead  of  extending  the  system 
of  representative  government  so  as  to  include  representatives 
from  remote  parts  of  the  empire,  the  tendency  now  is  to  al- 
low what  is  called  home  rule  to  Ireland  and  thereby  to  further 
divide  legislative  authority.  But  this  is  really  in  accord  with 
the  American  plan  of  allowing  the  people  of  each  state  to 
make  laws  adapted  to  their  needs  and  views. 

The  spread  of  representative  government  since  the  Ameri- 
can Revolution  has  been  very  rapid.  In  the  western  hemi- 
sphere practically  all  the  governments  are  republics  in  form, 
except  the  European  dependencies.  In  Mexico  and  Central 
America  military  force  is  still  resorted  to  for  the  establish- 
ment of  political  power  at  times,  but  it  is  to  be  hoped  and 
expected  that  stable  governments  based  on  free  and  fair  elec- 
tions and  submission  to  the  will  of  majorities  will  soon  be 
maintained  as  they  now  are  in  the  Latin  states  of  South 
America.  In  Europe  Switzerland  and  France  are  well  estab- 
lished republics,  and  Portugal  has  recently  become  one.  In 
Asia,  Japan,  Persia  and  Turkey  are  constitutional  monarchies, 
chu  dynasty  and  become  a  republic.  With  this  accession  to 
the  ranks  of  the  republics  of  the  earth  the  aggregate  popula- 
tion of  them  jumps  from  about  200,000,000  to  600,000,000. 
All  the  other  European  governments  including  Russia  and 
Turkey  have  representative  legislative  bodies  and  the  mon- 
arch's power  is  limited  by  constitution  in  all  but  Russia.  In 
Asia  Japan,  Persia  and  Turkey  are  constitutional  monarchies. 
It  thus  appears  that  the  only  great  country,  inhabited  by  civi- 
lized people,  in  which  popular  representation  in  the  govern- 
ment is  wholly  denied  is  India,  which  is  ruled  as  a  dependency 
by  Great  Britain.  There  is  great  diversity  in  the  meaning 
of  the  term  limited  monarchy  as  applied  to  the  different  gov- 
ernments. In  Great  Britain  the  power  of  the  king  has  been 
reduced  to  a  shadow  and  the  hereditary  house  of  lords  to  little 
more  than  an  advisory  body,  while  in  Germany  the  Emperor 
is  still  the  war  lord  with  the  weapons  of  a  despot  at  his  com- 
mand.    When  it  is  considered  that  the  doctrine  that  kings 


934  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ruled  by  right  divine  was  firmly  established  and  maintained 
all  over  the  world  till  the  close  of  the  eighteenth  century  the 
progress  of  representative  government  appears  very  marked 
and  rapid. 

Representative  government  does  not  imply  that  all  govern- 
mental functions  are  performed  by  men  chosen  directly  by 
the  voters.  In  the  United  States  the  President  is  chosen 
theoretically  by  an  electoral  college,  but  in  fact  by  choice  of 
candidates  made  by  party  conventions  and  choice  between 
these  candidates  by  vote  of  the  people.  The  President  as  the 
representative  of  all  the  people  appoints  all  the  heads  of  the 
executive  departments,  all  the  diplomatic  and  consular  rep- 
resentatives of  the  nation,  all  the  federal  judges,  and  tens  of 
thousands  of  inferior  executive  officers.  The  more  import- 
ant of  these  appointments  require  confirmation  by  the  senate, 
and  in  practice  most  of  the  local  officers  in  the  states  are  se- 
lected by  the  senators  and  representatives  on  whose  recom- 
mendation the  president  appoints  them.  Some  of  the  chief 
executive  officers  in  turn  appoint  a  great  number  of  subordi- 
nates in  their  departments.  Under  the  constitution  as  it  was 
originally  adopted  the  people  did  not  choose  the  members  of 
the  senate  but  the  state  legislatures  elected  them.  An  amend- 
ment has  recently  been  ratified  by  the  states  providing  for 
their  election  by  direct  vote  of  the  people.  The  governors  of 
the  states  and  the  mayors  of  the  great  cities  also  appoint  great 
numbers  of  executive  officers,  some  of  whom  require  confir- 
mation by  the  >fcaijb»senate  or  city  council.  All  members  of 
the  state  legislatures,  most  of  the  state  judges  and  nearly  all 
the  county  and  township  officers  are  elected  by  popular  vote. 
In  the  United  States  changes  in  the  cabinet  are  dependent  on 
the  pleasure  of  the  President,  while  in  France  and  Great 
Britain  they  are  dependent  on  the  will  of  Parliament.  While 
there  is  some  diversity  of  methods  in  the  various  republics, 
political  power  is  conferred  in  each  of  them  in  all  the  ways 
above  mentioned. 

In  the  constitutional  monarchies  not  only  is  the  king  or 
emperor  indebted  to  a  law  of  inheritance  for  his  office  rather 
than  to  the  people,  but  there  is  an  upper  house  of  the  parlia- 


GENERALIZATIONS  935 

ment  made  up  of  hereditary  nobles  or  royal  appointees  or 
both  who  are  not  accountable  to  the  people  for  their  action  nor 
subject  to  removal  by  them.  In  some  countries  the  hereditary 
nobility  exercise  great  influence  in  the  election  of  members  of 
the  lower  house.  The  requirement  of  property  qualifications 
as  a  condition  to  the  right  to  vote  in  some  countries  renders 
the  lower  house  a  representative  only  of  the  privileged  classes. 
In  all  these  countries  however  there  is  an  unmistakable  ten- 
dency to  restrict  the  exercise  of  arbitrary  power  and  make 
the  military  subordinate  to  and  dependent  upon  the  civil 
power. 

Ay  Methods  of  and  Principles  Applicable  to  the  Selec- 
tion OF  Public  Officers 

All  governments  however  established  or  whatever  their 
forms  or  functions  are  mere  expedients,  without  moral  at- 
tributes, and  doomed  to  successive  changes  in  methods  of 
conferring  power,  in  functions,  and  in  purposes.  It  does  not 
follow  that  any  of  these  are  matters  of  indifference,  or  that 
the  government  is  any  the  less  a  necessity.  The  men  who 
direct  the  operations  of  government  have  moral  attributes  and 
it  is  of  the  utmost  consequence  that  those  best  qualified  for 
the  discharge  of  the  required  duties  and  most  devoted  to  the 
general  welfare  be  chosen.  Some  general  principles  may  be 
declaredjvith  reference  to  the  methods  which  tend  to  g-ood 
and  bad  selections  of  officers.  First,  the  selections  should  be 
made  by  those  whose  sole  purpose  is  to  promote  the  general 
welfare,  i  he  purpose  of  the  military  despot  in  making  his 
choice  of  officers  is  to  secure  fidelity  and  efficiency  in  the 
execution  of  his  will.  His  own  interests  are  the  prime  con- 
sideration and  may  be  the  sole  one.  It  is  morally  possible 
that  a  despot  may  be  wholly  devoted  to  the  welfare  of  his. 
subjects,  but  it  is  hardly  possible  that  the  influences  surround- 
ing him  will  be  of  such  character.  The  courtier  is  usually 
actuated  by  selfish  motives  and  his  suggestions  and  recom- 
mendations are  ordinarily  jnade  to  promote  his  own  rather 
than  the  public  interests.  [The  same  principles  apply  with 
more  or  less  force  to  all  monarchical  and  oligarchical  govern- 


936  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ments.  The  influences  controlling  all  appointments  are  spe- 
cial and  personal  rather  than  general  and  public.  Where  the 
selections  are  made  by  the  whole  body  of  persons  whom  the 
officer  is  to  serve  the  general  motive  must  be  public  and  to 
promote  the  welfare  of  all.  Theoretically  the  desirable  mo- 
tive dominates  in  popular  elections.  It  often  happens  that  a 
small  but  influential  number  of  persons  succeed  in  dictating 
the  nomination  and  procuring  the  election  of  officers  who  are 
devoted  to  their  personal  interests  or  favorable  to  schemes 
for  the  advancement  of  special  interests.  Ambitious  candi- 
dates, though  lacking  in  moral  purposes  and  qualifications  for 
the  offices  to  which  thev  aspire,  may  yet  be  experts  in  the  art 
of  getting  votes  and  succeed  in  defeating  opposing  candidates 
who  are  far  more  worthy.  Under  all  popular  governments 
there  is  a  constant  tendency  for  the  people  to  divide  into 
political  parties,  the  members  of  which  act  in  concert  to  se- 
cure the  election  of  the  candidates  of  their  choice.  Like  most 
other  expedients  employed  by  a  free  people  in  their  public 
affairs  party  organizations  have  their  good  and  bad  influ- 
ences. They  ordinarily  secure  ample  criticism  of  the  official 
conduct  of  officers  of  the  opposing  party,  and  sometimes  are 
quite  efficient  in  bringing  to  public  attention  candidates  well 
qualified  for  the  positions  to  be  filled.  They  also  are  capable 
of  exerting  good  influences  on  the  officials  while  in  office. 
On  the  other  hand  there  is  a  marked  tendency  for  political 
parties  to  fall  under  the  domination  of  leaders  whose  main 
purpose  is  personal  and  party  advantage,  and  who  resort  to 
immoral  means  to  accomplish  results.  It  is  well  to  have  the 
opposing  sides  of  all  public  questions  discussed  and  to  have 
the  merits  and  demerits  of  candidates  made  known,  but  it 
sometimes  happens  that  the  purpose  is  to  deceive  and  mis- 
lead rather  than  to  correctly  inform  the  public.  The  evils 
incident  to  popular  choice  are  however  temporary  and  such 
as  are  incident  to  human  weakness  and  imperfection.  The 
underlying  and  continuing  motive  must  still  be  good. 

[Second,  selections  of  representatives  and  officers  should 
be  made  by  those  having  sufficient  acquaintance  with  or  in- 
formation ^g:^^cerning  the  candidates  to  enable  them  to  judge 


GENERALIZATIONS  937 

fairly  of  their  qualifications.^  It  is  apparent  that  the  members 
of  a  tribe  or  a  small  community  may  know  all  the  prominent 
men  in  it  and  express  an  intelligent  choice  for  leaders.     This 
accounts  for  the  wide  prevalence  of  democracy  in  the  primary 
political    organizations    of    so    many    countries.    When    the 
choice  is  made  for  larger  districts  personal  acquaintance  with 
the  candidates  become  less  general,  and  the  voters  must  rely 
on  information  derived  from  others.     When  the  selection  is 
for  a  large  province  a  great  state  or  a  whole  nation  most  of 
the  people  must  rely  wholly  on  such  information.     Ample 
means  of  intercommunication  between  the  people  of  all  parts 
of   the  territory  affected  then   becomes   indispensable.      The 
growth  of  representative  government  has  been  contemporane- 
ous with  and  dependent  on  modern  inventions  and  improve- 
ments in  means  of  spreading  information  and  interchanging 
views.     The  printing  press,  postal  service,  railroad,  telegraph 
and  telephone,  have  done  much  to  eliminate  the  difficulties 
interposed  by  distance.     Instant  communication  with  all  the 
centers  of  civilization  throughout  the  world  is  now  not  only 
possible  but  common.  \The  practical  difficulties  in  the  way  of 
affording  full  and  correct  information  as  to  the  character 
and  qualifications  of  men  and  the  merits  of  public  measures 
among  the  multitudes  in  great  states  are  still  very   serious 
obstacles  to  be  overcome.     A  considerable  part  of  such  in- 
formation as  is  in  fact  scattered  among  the  people  mainly 
emanates  from  those  having  special  interests  to  subserve  as 
candidates  or  otherwise.    This  may  be  colored  with  falsehood. 
A  far  more  serious  practical  difficulty  of  similar  nature  lies 
in  the  want  of  time,  opportunity  and  capacity  of  the  average 
citizen  to  fairly  consider  and  decide  upon  the  merits  of  a 
great  number  of  opposing^  candidates  for  many  different  of- 
fices.    When  it  is  considered  that  each  American  citizen  is 
in  some  measure  responsible  for  the  selection  of  hundreds  of 
thousands  of  officers  high  and  low  the  physical  necessity  for 
selection  and  appointment  through  representatives  is  appar- 
ent.    All  the  people  could  not  possibly  take  part  in  the  direct 
choice  of  all  the  officers.     Representative  government  implies 
not  only  popular  selection  of  the  legislative  bodies,  but  also 


938  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

of  the  appointing  pov^r  that  fills  the  executive  offices.  Schemes 
jiave  often  been  adopted  under  which  a  body  of  men  chosen 
by  the  people  chooses  another  body  whichmakes  the  ultimate 
choice  of  the  persons  wEo  are  to  pertorni  the  official  dutiesr 
This  was  the  method  of  electing  United  States  senators,  who 
wielded  so  much  power  and  influence  in  the  selection  of  judi- 
cial and  executive  officers.  The  people  elected  the  members 
of  the  legislatures,  who  then  elected  the  senators  who  named 
the  appointive  officers.  This  system  has  been  found  open  to 
two  most  serious  objections;  it  interferes  seriously  with  the 
legislative  work,  and  gives  an  opportunity  for  those  who  seek 
special  privileges  and  advantages  to  exert  undue  and  often 
corrupt  influences  in  the  selection  of  the  senators.  Since  this 
provision  of  the  constitution  has  been  changed  all  legislative 
officers  in  the  United  States  are  chosen  lly  direct  vote  of  the 
electors.  There  is  a  rapidly  growing  feeling  that  federal 
judicial  officers  should  be  chosen  directly  by  the  people,  in 
place  of  being  appointed  for  life  as  now.  There  has  also  been 
a  tendency  to  add  to  the  list  of  executive  officers  on  the  bal- 
lots at  the  popular  elections,  but  the  impossibility  of  making 
an  intelligent  choice  between  so  many  candidates  who  are 
strangers  to  most  of  the  voters  is  apparent  and  becoming 
recognized.  Selection  of  those  who  fill  minor  executive  of- 
fices by  their  superiors  who  are  directly  chosen  by  and  ac- 
countable to  the  people  seems  to  produce  the  best  results. 

Third,  those  who  make  the  choice  of  persons  to  fill  public 
offices  should  have  a  general  understanding  of  the  nature  of 
the  duties  to  be  performed  and  be  in  a  position  to  iudge~oL 
,the  quahncations  ot  the  candidates^  It  is  still  necessary^ 
however,  that  the  leading  motive  actuating  those  who  make 
the  choice  should  be  to  promote  the  public  welfare.  Tiio.se 
speciallv  skilled  in  a  science,  profession  or  business  are  gen- 
erally better  qualified  to  select  officers  whose  duties  relate 
thereto  than  the  general  public.  ^J^j^jthgv  are  liable  to  have 
personal  or  class  interests  to  promote.  Lawyers  are  better 
qualified  to  sgjegt  judges  than  laymen,  and  physicians  and 
surgeons  health  officers,  but  the  interests  of  the  profession 
might  not  always  coincide  entirely  with  those  of  the  public. 


GENERALIZATIONS  939 

The  principle  of  expert  selection  of  experts  is,  however,  quite 
too  generally  neglected. 

4.  Direct  Legislation.     Initiative  and  Referendum 

Though  the  initiative  and  referendum  are  generally  looked 
on  as  new  they  are  mere  extensions  of  the  familiar  method  of 
establishing  popular  governments.  The  constitutions  of  the 
American  states  have  been  mostly  formulated  by  conventions 
and  submitted  to  the  people  for  adoption.  Amendments  to 
these  fundamental  laws  in  great  numbers  have  been  submitted 
to  the  vote  of  the  people  and  adopted  or  rejected.  The  sub- 
jects dealt  with  have  included  not  merely  the  framework  of 
the  government  but  many  rules  of  substantive  law.  The  prin- 
cipal new  feature  is  in  the  initiative  through  which  a  law 
formulated  by  any  citizen  may  be  submitted  to  the  voters  for 
adoption  on  the  petition  of  the  required  number  pi  voters. 
Formulation  of  laws  by  persons  who  are  not  members  of  any 
legislative  body  is  not  at  all  uncommon,  and  many  of  the 
most  carefully  prepared  acts  are  so  prepared  and  afterward 
enacted  into  laws..  The  referendum  is  merely  the  submission 
of  a  law  to  the  approval  of  the  people  as  constitutions  and 
amendments  thereto  are   submitted. 

5.  Changes  in  the  Forms  and  Functions  of  Governments 

As  we  have  seen  there  is  a  world-wide  drift  toward  popular 
representation  in  government  and  away  from  the  doctrine  of 
the  divine  right  of  kings  to  rule.  As  popular  influences  gain 
ascendency  it  wot^d  Veem  natural  that  military  tendencies 
"which  have  been  such  prolific  breeders  of  despotisms  should 
diminish.  Nevertheless  at  no  period  in  the  history  of  the 
world  was  there  anything  to  compare  with  the  modern  mili- 
tary and  naval  establishments  of  Europe  or  the  expenditure 
of  money  in  maintaining  them.  Modern  inventions  in  the 
manufacture  of  explosives,  guns,  steel  and  other  metals,  ship- 
building and  the  "many  costly  structures  and  instruments  of 
destruction  and  defense,  seem  to  have  caused  the  nations  to 
run  mad  in  a  race  of  military  organizations. 

The  claim  had  been  that  all  this  preparation  was  merely 


940  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

for  purposes  of  defense  but  a  situation  of  complete  prepara- 
tion for  a  conflict  fias  borne  its  natural,  perhaps  inevitable, 
fruit,  the  most  gigantic  war  the  world  has  ever  known.  The 
leading  nations  of  Europe  have  for  many  years  borne  a  most 
excessive  burden  of  taxation  for  military  and  naval  expendi- 
tures and  the  people  who  have  borne  these  burdens  are  now 
being  slaughtered  in  great  numbers  as  a  result  of  them.  The 
perfection  of  Germany's  army  neither  preserves  the  lives  of 
its  soldiers  nor  protects  their  families  from  the  suffering  that 
war  entails.  Great  Britain's  vast  navy  preserves  its  dominion 
over  the  sea  to  a  limited  degree  but  at  the  expense  of  the 
lives  of  many  of  its  sailors  and  marines.  Air  ships  and  sub- 
marines introduce  new  elements  in  warfare  and  have  served 
to  add  to  its  savagery.  Rules  for  the  protection  of  non- 
combatants  which  had  been  observed  in  recent  wars  are  now 
disregarded  because  deemed  impracticable  where  war  is 
waged  from  the  air  and  beneath  the  sea. 

Notwithstanding  this  dreadful  relapse  into  ancient  sav- 
agery aided  by  so  many  modern  inventions,  the  demand  for 
some  general  organization  of  the  nations  of  the  world  which 
will  not  merely  prevent  the  recurrence  of  such  conflict  but 
which  will  relieve  the  people  of  all  the  nations  from  the  bur- 
dens of  great  military  and  naval  establishments  is  more  wide- 
spread, general  and  persistent  than  at  any  time  before  in  the 
history  of  the  world.  The  danger  of  placing  the  power  to  set 
all  Europe  ablaze  with  war  in  the  hands  of  a  single  ruler  is 
apparent  to  all  observers.  Thousands  of  men  are  now  earn- 
estly seeking  for  some  practicable  plan  which  will  secure  the 
multitude  against  the  mad  ambitions,  crimes  and  follies  of 
crowned  heads  and  military  leaders. 

In  times  past  differences  in  race,  language,  religion  and 
customs  have  interposed  serious  obstacles  in  the  way  of  good 
understandings  between  nations.  These  obstacles  are  being- 
measurably  removed  by  intercommunication  and  education, 
but  on  the  other  hand  modern  facilities  for  travel  and  com- 
munication bring  the  people  of  each  country  in  contact  with 
the  people  of  all  the  others  in  greater  or  less  degree.  The 
most  military  nations  are  those  that  come  most  in  contact 


GENERALIZATIONS  941 

with  the  others.     In  the  dark  ages  China,  Japan  and  India 
were  completely  isolated  from  the  Europeans.     Now  the  fleets 
of  all  nations  sail  into  their  ports,  and  railways  connect  them 
by  land.     England,  France,  Germany,  Italy  and  Russia  are 
reaching  out  for  distant  possessions,  while  Spain  and  Turkey 
have  been  forced  to  give  up  much  of  theirs.     The  savage 
tribes  of  Africa  are  being  subdued  by  Europeans  who  covet 
their  lands  and  products.     All  the  earliest  seats  of  civilization 
in  Egypt,  India,  China  and  Babylonia  are  either  already  dom- 
inated or  threatened  by  these  aggressive  nations.      Military 
force  is  still  employed  for  the  extension  of  power,  as  it  was 
in  the  days  of  Ramses,  Darius,  Alexander  and  Caesar.     Sav- 
ages are  subdued  by  it,  a  relatively  easy  matter,  and  vast 
preparations  of  armies  and  navies  are  made  to  ward  off  and 
overawe  other  covetous  military  nations.     Even  the  United 
States  unfortunately  took  from  Spain  a  claim  of  sovereignty 
over  the  Philippine  Islands  and  pays  the  heavy  penalty  for  it 
of  increased  militarism  and  $200,000,000  a  year  in  added 
war  and  naval  expenditures.    A  few  centuries  ago  the  wars  of 
European  nations  were  mostly  due  to  claims  of  their  rulers 
to  sovereignty  over  neighboring  territory,  and  with  immedi- 
ate neighbors.      Now  the  conflicts  are  largely  over  distant 
possessions.     Very  modern  examples  of  this  are  in  the  wars 
of  Russia  with  Japan  over  claims  of  dominion  and  privilege 
in  northeastern  Asia,  and  between  Italy  and  Turkey  over  a 
part  of  northern  Africa.     The  material  as  well  as  the  moral 
advantages  of  a  general  agreement  among  all  the  aggressive 
nations  to  police  the  countries  inhabited  by  savages  and  pro- 
tect the  people  of  all  nations  who  see  fit  to  go  there  for  law- 
ful purposes,  have  not  yet  overcome  inherited  military  ten- 
dencies, national  selfishness  and  the  jealousies  of  the  great 
powers.     In  theory  the  submission  of  this  whole  matter  to  a 
parliament  of  all  the  nations  is  simple,  yet  practical  obstacles 
still  prevent  it.     By  war  and  the  maintenance  of  armies  and 
navies  the  interests  and  ambitions  of  a  few  are  served,  but 
the  multitude  always  suffer  from  them.     Militarism  and  de- 
spotism go  hand  in  hand  and  are  of  course  antagonistic  to 
the  welfare  of  the  public.     The  guilt  of  provoking  war  us- 


942  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

ually  lies  in  some  ruler  or  leaders.     The  great  multitudes  pay 
the  penalties  of  their  crimes  and  often  enrich  and  glorify 
them  for  the  misery  they  have  inflicted.     With  the  advancing 
enlightenment    of    the    masses    throughout   the    world   these 
truths  are  gaining  recognition  and  aggressive  warfare  is  con-^ 
demned,  yet  it  is  not  common  to  fix  criminal  responsibility  on 
the  men  who  dictate  national  policies.    The  central  idea  of  the 
union  of  the  American  states  is  applicable  to  a  world  wide 
union  of  the  nations.    Such  a  union  calls  merely  for  the  super- 
imposition  over  all  nations  of  an  agency  made  up  of  repre- 
sentatives of  each  for  the  promotion  of  the  welfare  of  all, 
leaving  the  regulation  of  the  internal  affairs  of  each  country 
to  the  home  government  of  it.     It  implies,  however,  the  ac- 
ceptance by  all  nations  of  the  representative  principle  and  of 
the  equality  before  the  law  of  the  people  of  all  races  and 
countries.     It  must  be  attended  by  such  general  education  of 
the  masses  and  intercommunication  among  them  as  are  es- 
sential to  a  world-wide  understanding  of  the  principles  of 
the  union.     The  guarantee  to  the  citizens  of  each  state  of  all 
the  privileges  and  immunities  of  all  the  other  states  is  of 
prime  importance  in  America,  and  would  be  so  in  a  world 
union.     North  and  South  America  are  republican  throughout 
and  though  Mexico' and  Central  America  still  have  military 
disorders  they  have  accepted  the  principle  of  self-government. 
With  the  aid  of  a  general  union  all  their  difficulties  would 
doubtless  be  relieved.     For  a  long  time  similar  conditions  ex- 
isted in  the  South  American  states  but  they  have  substantially 
disappeared.     The  United  States  had  its  frightful  civil  war, 
but  the  principle  of  local  self-government  and  of  equality  of 
rights  among  all  the  people  was  not  impaired.     The  people 
of  France  and  Switzerland  are  educated  for  such  a  union, 
and  all  the  British,  German,  Scandinavian,  lowland  and  re- 
lated people,  though  retaining  monarchical  forms  of  govern- 
ment, are  quite  well  prepared  to  enter  into  and  maintain  a 
general  union.     Not  only  these  but  the  pacific  races  of  China 
and  India  and  the  Japanese  are  amply  qualified  to  join  the 
great  federation.     The  European  states  where  religious  dom- 
ination still  combines  with  military  in  government  and  the 


GENERALIZATIONS  943 

Mohammedans  might  be  found  more  intractable  than  others, 
though  they  cannot  be  said  to  be  more  warhke. 

A  parHament  of  the  world  would  of  necessity  be  based  on 
the  broadest  toleration  of  local  institutions,  laws,  beliefs  and 
personal  views  in  all  non-essentials.  It  could  only  stand  on 
an  accepted  theory  of  justice  to  and  equality  of  legal  right 
in  all.  All  national  robbery  by  military  force  would  neces- 
sarily be  condemned.  It  is  not  essential  to  the  successful 
maintenance  of  such  a  union  that  the  people  of  all  countries 
should  regulate  their  domestic  affairs  in  the  same  manner. 
It  is  only  necessary  that  they  should  be  substantially  agreed 
as  to  the  principles  governing  international  relations  and  in 
the  sterilization  of  the  military  functions  of  government. 
Increased  intercomrrmnication,  interchange  qf  literature, 
trade,  common  enterprises,  common  language  and  common 
purposes  tend  to  sympathy  and  good  understanding.  That 
all  these  influences  are  actively  at  work  and  are  breaking  down 
the  barriers  which  have  so  long  caused  fear  and  suspicion 
where  confidence  and  good  will  ought  to  prevail  is  manifest. 
Whenever  the  sublime  ideal  of  universal  brotherhood  and 
mutual  help  among  all  people  prevails  there  will  be  little  diffi- 
culty in  effecting  a  general  union. 

Among  the  Greeks  and  Romans  law-making,  military, train- 
ing, religion  and  the  administration  of  justice  were  the  public 
matters  receiving  most  attention.  At  Sparta  the  young  were 
educated  by  the  state.  Education  of  the  boys  meant  military 
training  and  of  the  girls  physical  development;  all  primarily 
for  the  purpose  of  giving  strength,  courage,  endurance  and 
efficiency  in  war.  In  all  the  Greek  and  Roman  cities  religious 
observances  were  matters  of  state  concern,  and  Rome  has  its 
pontifex  maximns  and  its  college  of  pontifices.  Popular  in- 
stitutions necessarily  imply  public  instruction  in  matters  of 
public  concern  and  the  Greeks  and  Romans  disseminated 
knowledge  of  military  affairs,  religious  observances  and  the 
principles  of  their  governments  and  laws,  through  the  dis- 
cussions in  their  assemblies,  writings  open  to  public  inspection 
and  in  many  other  ways.  Instruction  in  language,  mathe- 
matics, philosophy,  science  and  art  was  given  mainly  in  pri- 


944  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

vate  schools.  In  Asiatic  and  European  despotisms  legislation 
was  merely  an  assertion  of  the  will  of  the  monarch,  while 
custom  afforded  most  of  the  rules  governing  the  conduct  of 
people  in  their  private  affairs.  Military  organization  was  the 
basis  of  the  feudal  system  and  continued  to  be  the  basis  of  the 
monarchical  system  which  ensued,  but  both  were  closely  al- 
lied with  the  great  religious  organization  of  which  the  Pope 
was  the  head,  except  as  conflicting  interests  and  ambitions 
caused  dissensions.  The  functions  of  the  kingly  govern- 
ments included  military  organization,  collection  and  disburse- 
ment of  the  revenue,  administration  of  the  law,  and  the 
display,  intrigue,  amusements  and  debaucheries  of  the  courts. 
Modern  governments  have  added  many  new  functions. 
I.  The  first  and  by  far  the  most  important  of  these  is  the 
dissemination  of  knowledge.  Free  schools  maintained  at  public 
expense,  affording  instruction  to  all  in  all  branches  of  learn- 
ing from  the  primary  to  the  university,  and  technical  schools 
are  now  maintained  by  all  the  leading  nations.  At  first  the 
Greek  and  Roman  languages  and  literature  and  theology  filled 
a  large  part  of  the  curriculum,  but  now  there  is  a  marked 
tendency  to  treat  these  as  of  minor  concern  and  to  give  prom- 
inence to  the  sciences,  to  all  knowledge  that  gives  man  mas- 
tery over  the  material  world.  Among  the  newly  developed 
or  greatly  enlarged  functions  of  government  are : 

I.  Education  which  is  no  longer  mere  polish,  but  equipment 
with  power  and  efficiency  in  all  undertakings.  The  old  theory 
that  gentility  is  measured  by  elegant  worthlessness  and  indo- 
lence, and  that  distinction  must  be  based  on  war's  savagery  is 
being  discarded  and  men  are  measured  by  the  more  just  stand- 
ard of  the  services  they  render  to  others.  The  great  man  now 
is  he  who  does,  invents,  plans  or  (directs  something  that  con- 
tributes to  the  welfare — not  the- desiruction — of  the  multitude. 
Young  men  are  still  trained  and  educated  for  war  in  great 
schools  maintained  by  the  nations  as  well  as  in  military 
camps,  but  much  of  the  instruction  given  in  the  military  and 
naval  academies  is  just  as  valuable  preparation  for  civil  as  for 
military  duties.  These  schools  are  relatively  few  in  number 
when  compared  with  the  general  systems  of  common  schools 


GENERALIZATIONS  945 

where  all  the  children  are  taught  the  fundamentals.  In  the 
United  States  the  expenditures  of  moneys  raised  by  taxation 
for  the  maintenance  of  public  schools  are  far  in  excess  of 
those  for  any  other  public  purpose  and  now  exceed  those  for 
the  current  expenses  of  both  the  army  and  navy  by  $150,- 
000,000  a  year.  The  European  countries  do  not  yet  make 
so  good  a  showing. 

2.  The  post  office  conducted  by  the  governments  is  essen- 
tially a  newly  developed  function.  Each  established  and  well 
organized  government  in  the  world  receives  transmits  and 
delivers  letters,  printed  matter  of  all  kinds  and  small  pack- 
ages not  only  for  all  its  own  people  but  also  to  and  from  all 
the  people  of  all  other  civilized  countries.  All  the  nations 
join  in  the  international  postal  union,  and  though  the  vast 
significance  of  it  is  seldom  discussed,  the  world  already  has 
one  general  governmental  agency  performing  a  strictly  useful 
and  peaceful  function.  Next  to  the  educational  function  this 
is  far  the  most  useful  and  valuable  one  performed  by  the 
governments,  yet  it  is  carried  on  with  the  maximum  of  ef- 
ficiency at  minimum  cost  for  the  service  and  with  little  or  no 
expense  to  the  taxpayers. 

3.  The  telegraph  and  telephone,  services  which  in  the  Uni- 
ted States  are  conducted  by  corporations  are  operated  in 
Europe  largely  by  the  governments  in  connection  with  the 
postal  service.  While  they  are  of  great  and  growing  import- 
ance the  expenditures  connected  with  them  are  relatively 
small. 

4.  Construction  and  maintenance  of  roads  by  the  govern- 
ment is  not  new.  The  Romans  and  ancient  Peruvians  were 
great  road  builders  and  all  civilized  governments  devote  more 
or  less  attention  to  their  highways.  Some  of  these  old  roads 
were  as  well  constructed  as  any  modern  ones  constructed  for 
similar  use,  but  railroads  have  introduced  an  entirely  new 
system  of  transporting  persons  and  property.  In  some  coun- 
tries these  are  constructed  and  operated  by  the  government, 
while  in  others  they  are  owned  and  operated  by  private  cor- 
porations under  more  or  less  governmental  supervision.  The 
construction  of  highways  open  to  the  use  of  the  general  pub- 


946  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

lie  has  always  been  regarded  as  a  proper  function  of  the  gov- 
ernment, but  the  traffic  carried  on  over  them  was  in  private 
hands.  As  a  railroad  from  its  nature  calls  for  unity  of  man- 
agement, the  transportation  of  persons  and  property  over  it 
must  either  be  assumed  by  the  government  or  left  to  some 
private  or  corporate  organization.  Highways  of  all  kinds  are 
required  for  the  postal  service  and  a  railroad  operated  by 
the  government  merely  rounds  out  the  service  given  through 
the  highways  and  post  office  by  adding  the  operation  of  trains 
over  the  road  for  the  transportation  of  packages  of  all  sizes 
and  kinds  and  also  of  passengers.  To  what  point  the  func- 
tions of  governments  will  be  extended  along  this  line  the 
future  will  answer.  The  railroad  is  necessarily  more  or  less 
a  monopoly,  but  is  dependent  on  the  intercourse  and  commer- 
cial transactions  of  people  dwelling  at  a  distance  from  each 
other  for  its  support.  Neither  state  nor  national  boundaries 
indicate  natural  termini  for  it  or  Hmitations  of  its  usefulness. 
It  becomes  in  time  a  firm  bond  of  union  between  the  people 
who  use  it.  In  spite  of  governmental  hostility  it  steadily 
teaches  unity  of  interest,  mutual  confidence  and  brotherly  as- 
sistance, regardless  of  race  or  nationality. 

5.  Improvement  and  care  of  the  waterways,  rivers,  har- 
bors, lakes  and  seas,  construction  of  canals,  dikes,  aqueducts, 
breakwaters,  lighthouses,  docks  and  other  aids  to  traffic  by 
water,  while  not  new  are  greatly  enlarged  functions  of  the 
government.  The  ancient  Babylonian,  Egyptian  and  Chinese 
governments  constructed  canals  in  aid  of  agriculture  and 
commerce  and  gave  much  attention  to  the  promotion  of  these 
industries.  The  superiority  of  their  civilization  was  due  to 
their  peaceful  activities.  The  changes  in  modern  activities 
along  these  lines  is  due  mainly  to  the  use  of  steam  as  a  mo- 
tive power.  The  construction  of  railroads  tends  to  diminish 
the  need  for  canals  as  waterways,  and  steam  pumps  raise 
water  for  purposes  of  irrigation.  Steamboats  have  brought 
all  countries  bordering  on  the  seas  into  safe  and  easy  com- 
munication with  each  other,  where  all  the  proper  safeguards 
and  conveniences  are  supplied  along  the  coast.  Such  vast 
undertakings  as  the  Suez  and  Panama  canals  are  carried  to 


GENERALIZATIONS  947 

completion  quickly  and  without  placing  an  appreciable  burden 
on  the  people  of  a  nation  of  ninety  million  people.  While 
great  sums  are  still  expended  on  fortifications  to  guard 
against  hostile  squadrons,  vastly  greater  sums  are  expended 
on  improvements  designed  to  open  and  make  safe  the  entry 
of  friendly  ships  and  people  from  every  quarter  of  the  globe. 
While  other  nations  have  not  passed  from  a  policy  of  rigid 
exclusion  of  all  foreigners  to  one  of  most  active  intercourse 
like  Japan,  the  trend  in  all  nations  is  to  extend  a  welcome  to 
all  as  friends,  and  to  use  the  powers  of  government  to  pro- 
mote friendly  intercourse  with,  rather  than  for  the  destruction 
or  robbery  of  them. 

6.  Care  for  the  unfortunate  is  now  recognized  as  a  duty  of 
the  organized  public.  Asylums  and  hospitals  of  all  kinds  are 
maintained  for  the  care  of  the  insane,  diseased,  imbecile  and 
indigent.  It  is  recognized  as  a  duty  of  the  state  to  take  care 
of  all  who  cannot  care  for  themselves  and  have  no  kindred 
on  whom  they  rightfully  depend.  These  humane  functions, 
which  now  call  for  large  expenditures,  are  distinctly  modern 
and  are  a  public  acceptance  of  one  of  the  obligations  of  uni- 
versal brotherhood.  To  these  may  be  added  the  care  for  those 
who  sail  the  seas,  lakes  and  rivers,  through  life-saving  crews 
and  appliances,  lights,  buoys  and  forecasts  of  the  weather.  In 
harmony  with  the  recognition  of  these  duties  toward  the  un- 
fortunate has  come  a  change  in  the  attitude  of  the  public 
toward  the  criminals.  There  is  a  well  defined  drift  away, 
not  merely  from  arbitrary  and  unjust  executions  and  punish- 
ments, but  from  all  vindictive  punishments.  It  is  seen  by 
criminologists  that  tne  criminal  is  still  a  human  being,  entitled 
to  the  aid  of  the  state  in  becoming  a  useful  member  of  society, 
instead  of  an  enemy  to  it.  It  is  also  perceived  that  society  is 
measurably  responsible  for  conditions  that  stimulate  crime. 
It  is  now  regarded  as  a  proper  function  of  the  state  to  under- 
take the  reformation  of  not  only  juvenile  but  adult  criminals. 

The  divorce  of  church  and  state  now  so  complete  in  the 
United  States  and  some  other  countries  is  a  most  important 
and  clear  cut  change  in  the  functions  and  theory  of  govern- 
ment.    The  growing  tendency  in  all  the  leading  nations  to 


948  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

deny  all  divine  commission  to  govern,  to  withhold  from  the 
church  all  support  by  taxation  and  all  aid  in  procuring  the 
observance  of  religious  forms  is  very  marked.  When  govern- 
ments are  established  and  maintained  by  the  people  for  their 
own  purposes  both  military  methods  and  religious  sanctions 
are  unnecessary.  The  secular  power  no  longer  requires  the 
prop  of  the  church  to  maintain  arbitrary  assumptions  of  au- 
thority, and  no  longer  vouches  for  the  truth  of  its  doctrines, 
or  compels  the  people  to  furnish  it  revenue.  This  divorce- 
ment is  of  profound  importance  in  its  moral  influence.  False 
claims  of  divine  right  to  rule  are  no  longer  bolstered  up  by 
the  teachings  of  the  clergy,  but  the  secular  officers  must  look 
to  the  people  for  their  authority  and  justify  their  conduct  to 
them.  They  may  and  often  do  deceive  the  people  as  to  their 
motives  and  the  merits  of  their  policies,  but  the  very  truth 
of  the  matter  is  open  to  inquiry  and  all  the  churches  are  free 
to  act  as  public  censors.  On  the  other  side  the  truth  of  the 
claims  of  the  clergy  that  they  are  commissioned  to  speak  for 
the  divinity  is  no  longer  vouched  for  by  the  secular  power 
but  is  for  them  to  establish.  Out  of  the  darkness  appears 
truth  as  the  divine  light  and  the  only  safe  guide  to  be  fol- 
lowed. The  truth  is,  falsehood  is  not.  The  truth  bears  every 
test,  falsehood  may  bear  some  but  not  all.  No  matter  what 
the  line  of  human  inquiry,  he  who  can  follow  the  lines  of 
truth  knows  that  he  gains  strength  step  by  step  and  that  he 
gathers  imperishable  fruit  as  he  goes.  The  words  of  kings 
and  priests  and  the  books  they  have  written  may  be  true,  but 
they  may  also  be  mixed  with  and  colored  by  falsehood.  To 
proceed  safely  in  scientific  investigation  there  must  be  either 
mathematical  demonstration  or  such  multiplicity  of  tests  as 
excludes  the  chances  of  error.  All  the  people  searching  freely 
and  eagerly  for  the  true  rules  affecting  their  common  welfare 
and  true  relations  to  each  other  can  discover  more  of  them 
than  any  select  few. 

It  is  clear  that  whatever  changes  in  governmental  forms 
and  functions  tend  to  eliminate  the  destructive  and  wasteful 
agencies  and  substitute  productive  and  economical  ones  are 
desirable.     It  is  clear  that  the  elimination  of  hatred  and  mal- 


\ 


GEN  ERALIZ  ATION  S  949 

ice  from  the  impulses  which  actuate  the  governing  force  is 
devoutly  to  be  wished,  and  the  propagation  of  universal  kind- 
ness and  good  will  stimulated  in  all  ways.  The  field  of  pos- 
sible improvement  appears  limitless,  but  we  have  entered  on 
and  are  traveling  over  it  at  steadily  accelerating  speed.  Many 
people  are  alarmed  at  the  tendency  to  rapid  changes  in  all 
popular  governments.  This  is  due  to  the  experimental  char- 
acter of  all  governments,  the  infinite  possibilities  of  improve- 
ments in  them,  rapid  changes  in  internal  and  external  condi- 
tions, and  the  application  to  public  affairs  of  so  many  more 
minds  actuated  by  diverse  impulses  and  suggestions.  It  needs 
but  a  few  of  the  many  pages  of  history  to  show  how  great 
harm  nations  can  do  each  other  in  bloody  warfare.  It  is  now 
equally  apparent  that  no  matter  how  near  to  or  remote  from 
each  other  they  may  be,  all  may  profit  from  mutual  aid.  The 
possibilities  of  achievements  through  combined  efforts  to  pro- 
mote the  general  welfare  appear  limitless.  Compared  with 
them  the  building  of  a  Panama  canal  is  but  as  a  holiday  di- 
version for  the  amusement  of  the  world. 


LAWS 

Methods  of  Originating  Laws 

The  leading  methods  of  originating  laws  may  l)e  placed  in 
eight  classes:  First,  and  most  universal  is  custom  through 
which  laws  arise  from  the  activities  and  environments  of  the 
people  and  come  to  be  observed  as  rules  of  conduct  without 
formal  agreement  or  promulgation  by  any  body.  Second, 
Parental  authority,  exercised  first  over  the  immediate  family 
and  then  extended  to  posterity  and  over  enlarged  families. 
Third,  Military  power,  through  which  a  despotic  ruler  con- 
verts his  will  into  law.  Fourth,  Oligarchic  decrees  promul- 
gated by  a  dominant  few.  Fifth,  Religious  leaders  acting 
singly  like  Mohammed,  or  in  combination  like  Moses  and 
Aaron,  or  in  representative  bodies,  and  claiming  divine  sanc- 
tion for  their  rules  of  conduct.  Sixth,  Representative  bodies 
authorized  to  speak  for  the  state  and  enact  laws.     Seventh, 


950  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

Direct  action  of  the  people  in  a  general  assembly  of  the  mass, 
or  by  vote  on  a  proposition  submitted  to  them.  Eighth,  De- 
cisions of  courts  and  doctors  of  the  law  who  are  authorized  to 
interpret  the  written  law  and  called  on  to  find  a  rule  of  de- 
cision where  there  is  no  written  one. 

The  spirit  of  the  law  accords  with  the  spirit  of  the  maker 
of  it,  and  the  purpose  to  be  accomplished  by  it  is  his,  not  that 
of  those  on  whom  it  operates. 

Laws  come  into  existence  through  a  combination  of  two 
or  more  of  these  methods  and  in  all  the  leading  nations  of 
the  world  there  are  survivals  of  laws  which  owe  their  origin 
to  each  of  them. 

Purposes  of  Laws  and  Motives  Prompting  Their 
Enactment 

I.  Punishment. 

The  laws  prescribing  punishments  have  many  aspects.  The 
importance  of  them  is  very  greatly  overestimated  by  most 
people,  though  by  no  means  inconsiderable.  The  sum  total 
of  wrongs  inflicted  through  violations  of  the  criminal  law 
is  very  small  in  comparison  with  the  sum  total  of  wrongs  in- 
flicted in  the  name  of  law  and  with  its  sanction.  This  affords 
the  anarchist  his  basis  of  reasoning,  but  does  not  justify  his 
conclusions.  Experience  everywhere  demonstrates  the  neces- 
sity for  a  public  force  to  restrain  those  who  will  not  volun- 
tarily refrain  from  injuring  others.  To  leave  the  injured 
party  to  right  his  own  .wrongs  in  his  own  way  leads  to  a 
succession  of  reprisals  and  enduring  feuds.  The  theory  of 
our  criminal  law  is  that  crime  consists  of  acts  detrimental  to 
the  public  welfare  and  that  all  such  are  public  offenses.  There 
is,  however,  in  the  nature  of  things  a  well  marked  difference 
between  those  offenses  that  are  merely  against  the  state  or  its 
rulers  and  those  that  harm  private  citizens  only. 

Purely  public  offenses  grade  all  the  way  from  treason 
manifested  in  open  warfare  agains  those  rightfully  entrusted 
with  the  powers  of  government  to  mere  failure  to  contribute 
revenue  or  comply  with  a  rule  of  public  order.  Treason  is 
almost  invariably  an  outgrowth  of  a  condition  of  social  dis- 


GENERALIZATIONS  95i 

order,  and  the  purpose  of  the  perpetrators  of  it  is  usually  to 
overcome  the  power  of  the  men  in  authority,  rather  than  to 
harm  the  general  public.  It  is  common  in  despotisms  which 
fall  into  weak  hands,  and  is  usually  punished  arbitrarily  in 
accordance  with  the  will  of  the  despot.  Those  condemned  as 
traitors  are  usually  merely  the  prominent  men  whose  power 
and  influence  the  despot  fears.  Executions  may  be  military 
as  in  the  recent  lamentable  instances  in  Mexico  or  under 
judgments  of  courts  organized  to  kill  like  those  employed  by 
Henry  VIII  of  England.  They  are  mere  manifestations  of 
savagery  in  different  forms.  In  well  ordered  states  where 
the  government  is  one  of  which  the  people  approve  treason 
is  rare.  It  may,  however,  assume  the  form  of  civil  war  as 
that  of  1 86 1  to  1865  in  the  United  States  in  which  millions 
participated  in  the  crime.  While  the  law  might  have  been 
invoked  to  slaughter  more  victims  after  the  struggle  ended, 
the  manifold  advantages  ensuing  from  the  restoration  of  all 
to  friendly  relations  are  perfectly  obvious.  The  despot  sel- 
dom feels  safe  in  acting  on  this  principle.  Most  of  the  other 
offenses  which  are  strictly  public  in  their  nature  are  connected 
with  the  army,  navy,  revenue,  currency  or  public  records. 
Many  of  the  offenses  relating  to  the  pubHc  revenue  have  no 
moral  turpitude  except  in  the  refusal  to  be  bound  by  the  law. 
In  and  of  itself  there  is  nothing  morally  wrong  in  bringing 
food  or  merchandise  of  any  kind  into  one  country  from  an- 
other. The  evasion  of  an  excise  or  other  tax  in  order  to 
supply  one's  family  with  the  necessaries  of  life  evidences  no 
moral  turpitude.  There  is,  however,  connected  with  all  these 
offenses  a  disregard  of  established  laws  deemed  necessary  for 
the  general  welfare. 

Of  offenses  against  private  persons  which  affect  the  gen- 
eral public  only  by  the  shock  to  the  feelings  of  others  and 
their  sense  of  security,  there  is  the  full  list  of  wrongs  which 
one  may  do  to  the  person  or  property  of  another  of  such  crude 
and  obvious  viciousness  that  all  recognize  the  immorality  of 
the  acts.  For  such  acts  the  laws  of  modern  states  no  longer 
take  eye  for  eye  and  tooth  for  tooth,  but  many  of  them  still 
do  take  life  for  life.     For  most  wrongs  a  fixed  quantity  of 


952  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

suffering  is  measured  out  for  a  given  offense.  More  humane 
views  concerning  punishments  are  now  spreading,  and  it  is 
perceived  that  the  criminal  is  still  a  human  being  entitled  to 
help  and  sympathy.  The  offenses  violative  of  property  rights, 
though  still  given  much  consideration,  are  quite  inconsequen- 
tial in  their  general  effects  in  every  orderly  state.  The  sum 
total  of  value  of  all  property  which  changes  hands  as  a  result 
of  theft,  robbery,  embezzlement,  forgery  and  all  other  crimes 
of  similar  character  is  relatively  insignificant,  and  it  is  rare 
that  great  suffering  results  from  it.  Arson  committed  out  of 
malice  toward  another  or  to  defraud  an  insurer  is  by  far 
the  most  prevalent  and  disastrous  of  all. 

Let  us  measure  against  these  and  the  other  wrongs  commit- 
ted against  the  law  and  to  the  harm  of  others  the  wrongs 
which  are  committed  with  the  aid  of  the  law.  By  means  of 
the  law  the  government  forces  its  citizens  to  leave  their  pri- 
vate callings,  their  homes  and  families  and  enter  its  service 
in  the  army  or  navy.  It  declares  war  against  its  neighboring 
nation  and  sends  these  men  out  to  kill  and  be  killed,  wound 
and  be  wounded,  destroy  property  and  spread  desolation  over 
the  land  and  throughout  the  homes.  It  takes  the  property  of 
its  own  citizens  and  uses  it  to  destroy  the  lives  and  property 
of  the  citizens  of  other  countries.  It  murders  the  murderer 
and  confines  felons  in  dungeons  where  human  hatred  comes 
but  human  sympathy  is  wanting.  It  gives  absolute  dominion 
over  the  land  to  a  part  of  the  people  and  casts  sick  and 
starving  tenants  into  the  streets  at  the  landlord's  demand  and 
recognizes  his  right  to  be  harsh  and  cruel  in  the  assertion  of 
his  dominion  over  the  face  of  the  earth.  It  takes  food  from 
the  mouths  of  the  poor  and  clothing  from  their  backs  through 
the  taxation  on  the  articles  consumed.  It  lends  its  aid  in 
multiform  ways  to  aid  the  crafty  and  the  lucky  in  gathering 
incomes  from  those  for  whom  they  have  rendered  no  service, 
to  be  squandered  in  vain  show  and  debauchery.  The  hard  and 
merciless  creditor  is  the  favorite  of  the  law.  Every  advan- 
tage that  the  crafty  man  can  gain  in  accordance  with  the 
the  law,  is  carried  to  fruition  by  the  law.     It  is  the  law  that 


GENERALIZATIONS  953 

makes  and  fortifies  all  privilege  and  continuing  injustice. 
How  vastly  more  is  secured  to  the  favored  few  the  world  over 
through  the  unjust  use  of  the  law  than  all  that  is  taken  by 
all  the  crimes  against  the  law.  Manifestly  the  best  field  of 
labor  for  all  who  seek  the  elimination  of  crime  is  in  taking 
away  the  temptation  and  incentive  to  crime  by  doing  away 
with  the  injustice  which  the  law  now  sanctions.  Poor  men 
are  no  longer  hanged  for  killing  wild  game  and  thereby  in-  r 
terfering  with  the  savage  sport  of  the  idle  gentry  because  en- 
lightened sentiment  has  caused  the  repeal  of  the  laws  that 
required  it  to  be  done.  Boys  are  no  longer  hanged  for  steal- 
ing a  shilling,  but  monstrous  injustice  still  uses  the  law. 

In  primitive  societies  where  the  people  are  poor  and  sub- 
stantially equal,  offenses  are  few  in  number  and  punishments 
mainly  limited  to  death,  bodily  maiming,  chastisement  or 
fines.  Despots  add  a  list  of  offenses  relating  to  their  personal 
security  and  power.  In  theocracies  and  governments  combin- 
ing a  religious  establishment  with  the  civil  power  offenses 
against  religion  and  the  church  are  sometimes  greatly  multi- 
plied. Fictitious  crimes  like  heresy  and  witchcraft  have  been  I 
visited  with  frightful  torture  and  death.  The  more  complex  j 
the  organization  of  society  the  greater  the  number  of  statu- 
tory offenses.  In  the  United  States  Congress  and  the  state 
legislatures  go  on  defining  new  offenses  year  by  year  as  evils 
incident  to  changing  conditions  and  relations  of  the  members 
of  society  are  brought  to  their  attention.  This  multiplication 
of  statutory  crimes  has  a  marked  tendency  to  induce  disre- 
gard of  the  law  and  laxity  in  the  efforts  of  the  officers  to 
enforce  it. 

The  lists  of  crimes  against  which  penalties  have  been  de- 
nounced and  the  severity  of  the  punishments  inflicted  have 
been  so  varied  at  different  periods  of  the  world's  history  and 
in  the  different  countries  that  it  is  difficult  to  trace  anything 
approximating  a  steady  evolution  along  either  line.  Punish- 
ments among  the  ancient  Egyptians  are  said  to  have  been 
generally  mild,  while  at  Babylon  the  barbarity  of  the  lex 
talionis  prevailed.     China  and  India  have  exhibited  mildness 


954  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  barbarity  according  to  the  character  of  those  in  power  at 
the  time.  In  Europe  as  well  as  in  America  there  now  seems 
to  be  a  well  marked  tendency  to  mitigate  punishments.  The 
most  advanced  illustrations  of  this  tendency  are  in  the  treat- 
ment of  juvenile  offenders,  who  are  now  placed  in  schools 
for  instruction  and  reformation  rather  than  punishment,  in 
indeterminate  sentences  holding  out  an  inducement  to  earn 
liberty  by  good  conduct,  in  the  parole  of  prisoners  to  give 
them  a  chance  to  demonstrate  their  ability  to  abide  by  the 
laws,  in  improved  sanitary  and  moral  conditions  in  prisons, 
and  yet  more  important  than  all  these  in  a  growing  tendency 
to  search  out  the  causes  of  crime  and  charge  society  itself 
with  the  conditions  which  induce  the  commission  of  it.  In 
many  states  the  death  penalty  is  no  longer  inflicted.  The 
state  no  longer  compels  an  officer  to  take  a  life  that  cannot  be 
restored.  With  ample  wealth  to  provide  places  for  confine- 
ment and  restraint  of  those  who  lose  either  their  reason  or 
moral  self-mastery  the  apparent  necessity  for  swift  vengeance 
disappears.  It  is  dawning  on  us  that  the  offenses  committed 
by  those  we  have  so  long  looked  on  as  without  the  pale  of 
human  sympathy  are  but  the  natural  offspring  of  the  wrongs 
inflicted  by  the  dominant  forces  in  society  on  its  weaker  mem- 
bers. The  lord  who  excludes  the  would  be  tiller  of  the  soil 
from  his  game  preserve  to  starve  is  the  criminal  rather  than 
the  poacher  whom  in  former  times  he  caused  to  be  hanged. 
The  same  principle  applies  to  a  long  list  of  modern  condi- 
tions exhibiting  all  grades  of  inhumanity  on  the  part  of  the 
dominant  members  of  society. 

2.  Taxation 

The  justification  both  in  morals  and  in  public  expediency 
for  taxation  is  that  funds  are  needed  to  promote  the  general 
welfare.  In  fact  however  the  taxing  power  is  and  always 
has  been  invoked  largely  for  the  purpose  of  favoring  the  few 
at  the  expense  of  the  many.  In  the  crude  simple  despotisms 
It  takes  the  form  of  robbery,  the  despot  merely  taking  what 
he  wants  by  force.  A  step  in  advance  is  a  levy  of  tribute  on 
conquered  people  for  the  use  of  the  conqueror  and  his  fol- 


GENERALIZATIONS  955 

lowers.  In  more  advanced  states  the  purposes  multiply,  but 
always  with  a  large  element  of  personal  or  class  favoritism 
both  in  the  distribution  of  the  proceeds  and  apportionment  of 
the  burden.  The  typical  despot  squanders  his  revenues  on 
dissolute  courtiers  and  pomp  and  display  about  his  court. 
Taxation  with  him  is  sheer  robbery  of  the  industrious  people 
to  support  the  vices  of  the  favorites.  Tithes,  offerings  and 
other  church  exactions  are  similar  in  character  and  similarly 
used  where  the  priesthood  rule.  The  Romans  became  expert 
tax-gatherers,  and  the  republic  was  doomed  when  the  tribute 
from  the  provinces  produced  a  dominant  dissolute  class  and 
paid  legions  to  back  the  claim  of  military  aspirants  for  power. 
Modern  nations  are  able  to  and  do  collect  far  larger  amounts 
of  annual  revenue  than  the  ancients  could  because  of  the 
greatly  increased  returns  from  productive  industries  and  the 
far  greater  volume  of  money  and  substitutes  for  it  in  circu- 
lation. The  progress  made  in  the  art  of  tax-gathering  is 
mainly  along  the  lines  of  inventing  methods  of  indirect  tax^ 
ation  through  which  burdens  are  concealed  from  the  tax- 
payers. Such  methods  are  successfully  employed  in  the  forms 
of  excise  taxes  on  beer,  wine,  liquors,  tobacco  and  other  arti- 
cles of  domestic  production,  which  are  paid  in  the  first  in- 
stance by  the  producers  and  by  them  added  to  the  price 
charged  the  dealers  and  consumers.  Custom  duties  on  im- 
ported merchandise  are  similarly  collected  from  the  importers 
who  pass  the  taxes  on  to  the  consumers  through  added  prices. 
In  time  the  people  become  accustomed  to  the  high  prices  of 
such  commodities  and  pay  them  without  general  complaint. 
Capitation,  income,  inheritance  and  direct  property  taxes  are 
open  and  understood.  The  amount  of  the  payment  being 
known  the  tax-payer  promptly  complains  of  the  burden  unless 
convinced  of  the  necessity  for  it,  but  where  it  is  concealed  in 
the  price  of  articles  of  consumption  he  ordinarily  submits 
without  protest,  and  does  not  know  and  therefore  cannot 
show  to  what  extent  he  has  been  wronged  by  his  government. 
The  collection  of  such  taxes  is  facilitated  by  the  necessities  of 
the  consumers  on  whom  they  ultimately  fall,  because  they  are 
made  an  incident  to  the  buyer's  wants.    He  goes  to  the  market 


956    ■         EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

to  feed  and  clothe  his  family  and  furnish  his  home.  The 
taxes  are  added  to  the  prices  of  his  supplies.  The  funda- 
mental principle  of  such  taxes  is  vicious  because  it  adds  bur- 
dens to  want.  It  also  has  the  further  vicious  effect  of 
obstructing  the  natural  course  of  trade  and  thereby  giving 
artificial  advantage  to  some  to  the  detriment  of  the  public. 
Manifestly  the  more  just  method  is  to  distribute  the  public 
burdens  according  to  strength  and  ability  to  bear  them,  to  tax 
income  instead  of  outgo,  wealth  not  want.  Manifestly  the 
method  best  calculated  to  insure  rigid  scrutiny  of  public  ex- 
I  penditures  and  curb  waste  and  extravagance  is  to  present 
1  each^  taxpayer  with  a  bill  of  the  amount  required  of  him. 

In  the  United  States  the  general  rule  is  that  the  revenue 
required  for  schools,  roads,  bridges  and  other  state  and  local 
purposes  is  raised  by  direct  taxes  levied  on  the  property  within 
the  district.  While  there  is  sometimes  waste  and  extrava- 
gance in  these  expenditures,  the  purposes  are  so  universally 
approved  that  the  people  cheerfully  bear  them.  The  revenue 
of  the  general  government  however  is  mostly  raised  by  the 
indirect  methods  above  mentioned.  The  expenditures  are 
such  as  might  readily  be  foretold.  Militarism  takes  the  lion's 
share.  The  army  and  navy,  which  the  nation  got  along  with- 
out during  its  early  period  of  weakness  now  call  for  more  and 
more  as  the  need  of  them  diminishes.  As  official  positions 
become  ornamental  rather  than  useful  salaries  are  increased 
and  useless  offices  multiplied.  Multiplication  of  offices  and 
extension  of  the  functions  of  government  follow  a  well 
marked  law  of  governmental  growth.  This  is  well  or  ill  ac- 
cording to  the  nature  of  the  growth. 

There  is  another  method  of  raising  revenue  for  public  pur- 
poses of  fundamentally  different  character  from  either  of 
those  above  mentioned,  namely  by  performing  a  business  func- 
tion from  which  an  income  is  derived.  The  post  office,  public 
railroads ,  telegraphs,  telephones,  canals,  irrigation  plants, 
water-works,  gas,  electricity  and  like  public  service  works  are 
illustrations  of  this  sort.  The  officers  and  employees  who 
discharge  these  functions  are,  generally,  what  all  public  offi- 
cers and  employees  should  be,  public  servants  returning  a  full 


GENERALIZATIONS  957 

equivalent  in  service  to  the  public  for  their  salaries.  Their 
compensation,  even  though  charged  against  the  general  treas- 
ury, is  in  fact  collected  from  those  served  and  in  proportion 
to  the  benefit  received  by  each.  It  may  not  be  desirable,  prac- 
ticable or  even  possible  to  so  distribute  the  functions  of  gov- 
ernment that  the  officers  discharging  each  function  shall  be 
able  to  show  by  returns  from  it  that  they  have  earned  their 
salaries,  but  it  certainly  is  v^ell  to  apply  the  test  of  utility  to 
each  branch  of  the  public  service  and  v^eigh  cost  against 
benefits. 

In  many  countries  the  v^ealth  of  the  privileged  classes  is 
due  mainly  to  the  use  of  the  taxing  pov^er  to  extort  revenue 
from  the  industrious  multitude.  In  all  countries  it  is  per- 
mitted and  protected  by  a  government  maintained  by  taxes 
raised  from  the  producers  of  v^ealth.  The  possibilities  of  con- 
trolling the  accumulation  of  unvv^holesome  aggregations  of 
v^ealth  and  financial  power  by  the  apportionment  of  taxes  and 
the  uses  made  of  the  revenue  are  not  generally  perceived  ex- 
cept by  those  who  use  the  taxing  power  for  their  own  ag- 
grandisement, yet  by  this  method  alone  almost  any  desirable 
result  is  possible.  "The  power  to  tax  is  the  power  to  destroy." 
It  may  be  used  to  destroy  wholesale  injustice  as  it  has  been 
to  build  it  up.  In  many  countries  there  has  been  at  times 
wholesale  confiscation  of  coveted  accumulations  of  property, 
but  no  system  of  distributing  public  burdens  so  as  to  steadily 
and  continually  keep  them  bearing  most  heavily  on  those 
whose  rapacity  ought  to  be  restrained  has  ever  been 
maintained. 

3.  Personal  Status 

Laws  fixing  the  personal  status  of  individuals  and  classes 
of  people  have  played  a  most  important  part  in  the  history  of 
the  world.  The  primary  simple  division  is  into  masters  and 
slaves  of  which  all  others  are  modifications.  Prior  to  the 
rise  of  feudalism  in  Europe  slavery  had  been  recognized  by 
the  laws  of  every  nation  except  where  caste  worked  out  the 
same  results.  Human  beings  were  property  subject  to  pur- 
chase, sale  and  the  laws  of  inheritance.     Moses  and  Moham- 


958  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

med  both  sanctioned  slavery.  In  India  the  laws  of  caste  made 
masters  of  the  twice-born  classes  and  servants  of  the  Sudras, 
who  however  were  not  chattels  subject  to  sale.  The  Greeks 
and  Romans  enslaved  prisoners  of  war  and  passed  the  status 
on  by  sale  and  inheritance.  Prior  to  the  time  of  Justinian  the 
people  of  the  Roman  Empire  were  divided  into  four  principal 
classes :  citizens,  persons  having  Latin  rights  corresponding  in 
a  general  way  locally  to  the  rights  of  Roman  citizens,  freed- 
men  with  more  or  less  restricted  liberty  and  slaves.  The  basis 
of  this  division  was  quite  different  from  that  into  the  four 
leading  castes  of  India.  In  India  it  was  based  on  religion, 
education  and  occupation,  while  in  the  Roman  Empire  it  was 
based  on  a  theory  of  property  and  political  rights.  The  In- 
dian system  has  proved  the  more  enduring  and  difficult  to 
disrupt.  Feudalism  displaced  the  Roman  system  by  intro- 
ducing a  new  theory  of  mastery  through  title  to  land.  The 
owner  of  the  soil  by  dictating  the  terms  on  which  his  tenants 
might  live  on  the  land  could  obtain  all  the  fruits  of  mastery. 
More  modern  serfdom  in  Russia  operated  similarly.  The 
capture  by  Europeans  of  ignorant  African  savages  and  impor- 
tation of  them  into  America  caused  the  establishment  of  slavery 
in  America  long  after  its  disappearance  from  Europe.  It 
proved  as  terrible  a  scourge  to  the  white  masters  in  the 
United  States  as  the  enslavement  of  the  Israelites  did  to  the 
Egyptians.  There  is  now  a  well  defined  concensus  of  opin- 
ion the  world  over  that  slavery  is  immoral  and  detrimental  to 
the  public  welfare.  Chattel  slavery  is  therefore  rapidly  dis- 
appearing. There  is  also  a  general  tendency  to  raise  the  po- 
litical status  of  the  poor  classes. 

4.  Family  Relations 

The  law  governing  the  rights  and  duties  of  husband  and 
wife  toward  each  other  has  been  throughout  all  time  and  the 
world  over  the  law  of  the  stronger.  The  weaker  one  who 
most  needed  the  protection  of  the  law  is  the  one  from  whom 
its  protection  has  been  withdrawn.  In  Asia  the  wife  is  and 
always  has  been  little  less  than  a  slave  to  her  husband,  and 
polygamy  is  allowed  to  further  extend  the  mastery  and  gratify 


GENERALIZATIONS  959 

the  propensities  of  the  male  law-givers.  In  ancient  Rome 
wife  and  children  were  under  the  absolute  power  of  the  hus- 
band and  father,  but  polygamy  was  not  allowed  and  religion 
imposed  many  wholesome  restrictions  on  the  exercise  of  his 
power.  In  some  rare  instances  savages  have  respected  the 
rights  of  women,  but  the  rule  has  been  that  the  wife  was 
practically  a  slave,  and  often  a  captive  forced  to  become  the 
wife  of  her  captor.  In  spite  of  the  law  it  has  not  infrequently 
happened  that  the  wife,  being  the  more  capable  of  the  two  or 
the  more  resolute,  has  ruled  the  household,  but  on  the  other 
hand  the  instances  of  most  gross  oppression  have  been  dis- 
tressingly common.  Where  the  union  is  one  of  genuine  af- 
fection the  law  is  a  matter  of  minor  concern,  for  each  volun- 
tarily does  all  he  can  for  the  welfare  of  the  other.  Kansas 
and  some  other  American  states  have  reached  in  their  laws 
the  true  conception  of  absolute  equality  of  rights  in  the  hus- 
band and  wife  in  their  children,  their  property  and  political 
rights.  The  mothers  of  the  coming  generation  are  deemed 
entitled  to  as  much  respect  and  consideration  as  the  fathers. 
The  laws  of  most  of  the  American  and  European  states  how- 
ever still  maintain  the  mastery  of  the  husband  with  more  or 
less  emphasis.  In  different  countries  and  at  different  times 
marriage  has  meant  anything  from  the  capture  or  purchase 
of  a  wife  from  a  master  or  father  to  a  free  and  voluntary 
choice  on  the  part  of  both.  By  some  people  in  some  countries 
property  considerations  are  deemed  controlling,  while  by  others 
they  are  ignored  and  even  deemed  despicable  as  affecting  the 
true  basis  of  marriage.  Polygamy  though  nowhere  general, 
owing  to  the  equality  in  numbers  of  males  and  females,  is  al- 
lowed in  all  Mohammedan  countries  and  will  continue  so  long 
as  the  Koran  is  the  supreme  law.  In  all  Christian  countries  it 
is  condemned.  Polyandry  though  allowed  in  a  few  places  is. 
so  rare  that  it  is  seldom  mentioned.  A  world  wide  evil  of 
great  importance  lies  in  celibacy  and  prostitution.  As  the 
virtuous  marriage  is  the  source  of  all  virtue,  prostitution  is 
a  never  failing  parent  of  vice.  In  no  modern  country  is  mar- 
riage made  obligatory  either  by  law  or  religious  teachings. 
Ancient  Peru  affords  the  only  instance  of  compulsory  mar- 


96o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

riages  at  a  stated  age.  If  it  be  true  that  under  the  Peruvian 
system  there  was  neither  a  pauper  nor  a  prostitute  it  is  well 
worthy  of  study  in  this  connection.  Modern  governments 
leave  the  question  of  marriage  or  celibacy  entirely  to  the 
parties  concerned.  There  are  many  and  diverse  laws  relating 
to  the  forms  of  contracting  marriages  and  some  restrictions 
on  the  marriage  of  classes  of  persons  who  are  deemed  unfit, 
and  of  different  classes  with  each  other,  but  none  designed  to 
promote  them. 

The  laws  relating  to  divorce  are  quite  as  diverse  as  those 
relating  to  marriage  and  range  all  the  way  from  the  right  of 
the  parties  to  separate  at  will  to  prohibition  of  an  absolute 
divorce.  In  America  and  Europe  a  decree  of  a  court  for 
such  cause  as  the  law  of  the  particular  country  deems  suffi- 
cient is  generally  required.  No  other  field  of  legislation  is 
more  perplexing  or  works  out  less  satisfactory  results.  The 
effects  of  divorces  on  the  children  of  the  pair  demand  con- 
sideration and  some  states  now  require  that  they  be  repre- 
sented at  the  trial  of  a  divorce  case.  The  ill  success  of  all 
divorce  legislation  seems  to  indicate  that  happiness  in  the 
homes  must  be  secured  in  some  other  way,  and  that  divorce 
is  but  a  clumsy  make-shift  resorted  to  because  the  true  remedy 
has  not  been  discovered.  The  grand  difficulty  is  that  the 
whole  subject  of  matrimonial  relations  is  too  delicate  for  the 
state  to  deal  with.  The  God  of  Love  alone  can  legislate 
wisely  for  it. 

In  most  countries  the  father  has  been  and  still  is  the  master 
of  the  children.  In  ancient  Rome  this  mastery  lasted  through 
life  and  included  the  descendants  in  all  degrees  through  the 
male  lines  and  the  wives  of  sons  and  son's  sons.  Patriarchal 
systems  have  prevailed  in  many  Asiatic  countries.  In  Europe 
and  America  the  children  are  emancipated  at  an  age  variously 
fixed  by  the  laws  of  the  different  countries  and  in  many 
states  the  law  releases  parents  and  children  thereafter  from 
all  legal  obligation  toward  each  other.  In  America  the  spirit 
of  migration  is  so  active  that  the  grown  children  soon  leave 
the  homes  and  families  are  scattered  far  and  wide.  This 
effectually  prevents  the  growth  of  extended  patriarchal  house- 


GENERALIZATIONS  961 

holds  like  those  so  common  in  Asia  and  eastern  Europe. 
While  the  right  of  parents  to  punish  their  minor  children  is 
recognized  in  all  countries  the  laws  of  the  leading  ones  now 
prohibit  cruelty  to  them.  The  father  cannot  lawfully  put  his 
child  to  death,  maim  or  permanently  injure  it.  Modern  ten- 
dencies are  toward  a  weakening  of  paternal  authority  and 
family  ties.  In  this  there  is  a  mixture  of  good  and  ill.  It 
tends  to  widen  the  bonds  of  sympathy  among  remote  families 
and  distant  people,  and  to  weaken  them  between  members  of 
the  family.  This  sometimes  results  in  neglect  of  duties  to- 
ward one  another  and  especially  toward  aged  parents.  Per- 
haps this  foreshadows  a  state  of  society  in  which  kindness  will 
be  diffused  and  the  sense  of  kinship  with  and  duty  to  others 
will  extend  beyond  the  family  to  all  humanity. 

5.  Land  Laws 

What  is  title  to  land  and  whence  does  it  come?  My  birth- 
place was  the  ancient  hunting  ground  of  the  now  extinct 
Eries.  My  father  who  held  title  to  our  home,  my  mother, 
brothers  and  sisters  with  whom  I  dwelt  in  childhood  have  all 
passed  away,  but  the  hills  and  the  valleys,  the  woods,  mead- 
ows, pastures  and  streams  are  still  substantially  as  they  then 
were.  The  clay  tablet  on  which  a  deed  to  a  lot  in  Babylon 
was  inscribed  is  dug  up  and  deciphered  by  the  antiquary,  but 
grantor  and  grantee  and  the  Babylonian  kingdom  have  been 
no  more  than  a  reminiscence  for  thousands  of  years.  One 
man  held  such  tablets  for  many  pieces  while  others  occupied 
them  as  his  tenants.  Landlord  and  tenants  soon  gave  back 
to  the  soil  the  substance  of  their  lifeless  bodies  which  is  now 
mixed  with  the  other  dirt  of  the  wild  waste  where  the  great 
city  stood.  The  tablets  still  endure  but  neither  confer  nor 
take  away  rights.  Nations  rise,  make  laws  by  which  they  as- 
sume to  grant  perpetual  titles  to  the  face  of  the  earth,  fall  and 
sink  into  oblivion,  but  the  mountain  and  plain,  hill  and  valley 
still  drink  in  the  sunlight  and  the  rain  and  bring  forth  their 
annual  verdure  for  whomsoever  may  come  to  them.  What  is 
ephemeral  man  that  he  claims  perpetual  dominion  over  the 
land  on  which  he  rests  for  a  brief  period  and  then  withers 


962  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  decays  like  the  grass  or  drifts  away  like  the  passing 
cloud?  What  is  the  lesson  of  it  all?  The  earth  is  for  the 
living.     The  dead  merely  return  their  bodies  to  it. 

Men  have  made  land  laws  on  many  diverse  theories.     A 
tribe  of  American  Indians  occupied  a  district  as  a  common 
hunting  ground.     Some  of  them  cultivated  little  patches  of  it 
and  took  their  produce.     In  time  a  superior  force  came  and 
drove  them  away.     None  of  them  had  thought  of  permanent 
ownership  of  any  of  it.     Pastoral  tribes  in  the  Eastern  Hemi- 
sphere grazed  their  herds  where  grass  grew  and  had  property 
in  them  but  not  in  the  land.    Families  and  tribes  settled  down 
and  tilled  the  soil,  recognizing  a  common  title  in  all  the  people 
of  the  village.     Where  land  was  abundant  each  used  so  much 
as  he  pleased.    When  increase  of  numbers  imposed  limitations 
on  the  claims  of  each  the  community  made  assignments  from 
time  to   time  as  changing  conditions   dictated.      Possession 
protected  by  the  public  force  suggested  the  idea  of  continuing 
right  of  possession  and  use.     Temporary  absence  in  war  or 
on  business  suggested  right  to  possession  on  return  and  to 
the  products  during  absence.     Temporary  occupancy  by  an- 
other established  the  relation  of  landlord  and  tenant,  and  the 
sum  paid  by  the  tenant  for  the  privilege  of  occupancy  sug- 
gests the  power  and  advantage  to  be  derived  by  using  the 
public  force  to  maintain  the  dominion  of  the  absent  landlord. 
It  is  then  soon  perceived  that  with  the  conversion  of  the  right 
of  possession  into  the  right  to  dictate  terms  of  possession  to 
others   for  an   indefinite  period   in  the   future   a   scheme   of 
mastery    capable   of    extension    over   many   tenants   may    be 
evolved.     The  landlord  then  may  have  harvests  from  fields 
he  has  not  sown  and  receive  service  for  which  he  makes  no 
return  of  service.     The  right  to  dominate  a  part  of  the  face 
of  the  earth  without  occupancy  being  fully  established  and 
extended  by  the  law  of  wills  and  inheritance  the  complex  sys- 
tem of  land  tenure  which  prevails  in  Europe  and  America 
developed.     Regulation  of  the  occupancy  of  land  in  a  densely 
peopled  country  is  imperative  and  naturally  and  necessarily 
devolves   on  the   law-making   power.      The   Romans   treated 
land  as  a  vendible  commodity  and  placed  it  in  the  same  class 


GENERALIZATIONS  963 

with  slaves  and  work  animals  required  for  its  tillage.  Un- 
restricted right  of  purchase  and  sale  always  results  in  the 
concentration  of  title  to  land  in  the  hands  of  the  few,  and  this 
tendency  was  well  illustrated  at  Rome  and  throughout  the 
empire.  The  laws  compiled  by  Justinian  dealt  mainly  with 
title  to  slaves,  land  and  other  property,  and  the  transfer  and 
perpetuation  of  property  rights  by  sale,  will  and  inheritance. 
The  feudal  system  differentiated  land  titles  from  other  forms 
of  property  rights  and  based  its  theory  of  political  power  on 
a  modified  scheme  of  title  to  land.  It  was  then  perceived  that 
the  ownership  of  slaves  was  unnecessary,  that  title  to  land  in 
effect  gave  ownership  of  those  who  must  live  on  it,  and  that 
full  dominion  over  the  land  could  be  made  to  mean  full  per- 
sonal and  political  dominion  over  all  the  people  who  dwelt  on 
it.  The  king  then  became  lord  paramount,  holding  the  ulti- 
mate title  to  the  soil  of  his  kingdom,  which  he  parcelled  out 
among  his  vassals  and  their  dependents  according  to  circum- 
stances. The  feudal  system  gave  way  in  turn  to  the  com- 
mercial view  of  land  titles  which  had  preceded  it,  and  land 
again  became  subject  to  bargain  and  sale.  There  are  still 
survivals  of  the  ancient  village  systems  of  common  tenure 
without  individual  right  of  sale  and  of  various  modifications 
of  it,  and  of  some  of  the  incidents  of  feudal  tenure,  but  sub- 
ject to  such  restrictions  as  local  laws  impose,  perpetual  do- 
minion over  land  may  now  be  bought  and  sold  in  most  of 
Europe. 

In  the  United  States  the  government  has  claimed  the  ulti- 
mate title  to  all  the  land  which  had  not  become  private  prop- 
erty before  the  establishment  of  the  government,  subject  only 
to  the  possessory  rights  of  the  Indian  tribes.  The  Indian 
titles  have  been  acquired  by  treaties  from  time  to  time. 
Through  the  acquisition  of  political  sovereignt}^  over  the  ter- 
ritories and  the  Indian  rights  the  United  States  became  pos- 
sessed of  a  vast  area  of  fertile  land.  In  the  early  days  some 
of  this  was  sold  in  large  tracts,  but  later  the  quantity  allowed 
to  one  purchaser  was  restricted  to  160  acres  of  ordinary  land. 
Later  the  right  to  acquire  title  at  all  was  limited  to  actual 
settlers  to  whom  the  land  was  given  outright  after  five  years 


964  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

occupancy  and  improvement.  The  area  of  good  available 
agricultural  land  nov^  owned  by  the  government  is  very  small 
and  no  longer  affords  accommodations  for  the  multitude. 
While  the  quantity  of  land  which  a  settler  could  acquire  from 
the  United  States  has  been  thus  restricted,  the  title  conveyed 
has  been  full  and  absolute  and  no  restrictions  have  been  placed 
on  transfers  to  purchasers  after  completion  of  the  settler's 
title.  It  has  followed  naturally  that  a  large  part  of  the  set- 
tlers have  sold  their  homesteads  soon  after  perfecting  their 
titles  and  fallen  back  into  the  ranks  of  tenants.  The  process 
of  consolidating  the  holdings  in  the  hands  of  speculators  and 
investor  goes  on  quite  rapidly,  and  is  counteracted  only  by  the 
laws  of  inheritance  and  willingness  to  take  profits  out  of 
sales.  The  tendency  for  titles  to  pass  into  the  hands  of  the 
few  is  very  marked.  The  theory  of  the  title  conveyed  by  a 
patent  from  the  government  is  that  it  is  full  and  absolute  in 
the  patentee,  his  heirs  and  assigns  to  the  end  of  time,  and 
that  it  carries  with  it  all  beneath  to  the  center  of  the  earth 
and  all  above  to  the  stars;  subject  only  to  the  taxing  power 
and  the  exercise  of  eminent  domain  for  public  uses.  This 
gives  a  legal  basis  for  the  worst  form  of  land  monopoly.  The 
owner  may  use  the  land  or  not  at  will,  absolutely  exclude 
all  occupants  or  dictate  the  terms  of  tenancy.  The  courts, 
backed  by  the  whole  power  of  the  state  will  enforce  his  rights, 
no  matter  how  oppressively  exercised.  No  person  may  be- 
come a  tenant  except  on  the  landlord's  terms.  So  long  as 
government  land  was  open  to  every  settler  farmers  had  a  more 
or  less  available  alternative,  but  now  the  outlet  is  substantially 
closed  and  the  landlord's  extortion  is  only  limited  by  the 
steadily  diminishing  difficulty  in  obtaining  tenants.  Who- 
ever has  surplus  income  may  extend  his  holdings  of  land  ac- 
cording to  his  means,  and  the  landless  are  confronted  with 
advancing  prices  and  diminishing  net  incomes.  The  theory 
of  absolute  title  regardless  of  use  encourages  speculation  in 
unoccupied  farm  lands  and  vacant  town  property,  through 
which  many  great  fortunes  are  made  by  those  who  merely 
obstruct  settlement  until  their  cupidity  is  satisfied.  The 
profits  realized  from  such  investments  are  merely  sums  ex- 


GENERALIZATIONS  965 

torted  from  those  who  ultimately  use  the  land.  The  specu- 
lator renders  no  service  as  an  equivalent  for  his  profits,  and 
does  nothing  in  connection  with  his  dealings  for  which  he 
merits  a  reward.  No  theory  of  land  tenure  more  vicious  in 
principle  has  ever  obtained  in  any  country.  The  dual  system 
of  state  and  national  sovereignty  renders  it  exceptionally 
difficult  to  deal  with  land  monopoly  in  a  thorough  and  com- 
prehensive manner.  Though  the  laws  are  as  favorable  to  the 
concentration  of  land  in  the  hands  of  the  few  as  were  those 
of  ancient  Rome  before  the  republic  gave  way  to  the  military 
despotism,  there  is  still  a  great  middle  class  which  may  pro- 
tect itself  from  conversion  into  a  vast  illiterate,  debased  prole- 
tariat, such  as  Rome  then  had.  Title  to  the  face  of  the  earth 
vested  in  the  few  enables  them  to  condition  the  existence  of 
the  many,  but  title  is  wholly  dependent  on  artificial  human 
law  and  its  oppressive  use  on  the  aid  of  the  public  force. 
Political  power  is  here  vested  in  the  multitude  and  they  have 
it  in  their  power  at  all  times  to  change  the  law  and  abolish 
land  monopoly.  Every  family  requires  a  home.  Home  is 
the  citadel  of  all  virtues  and  good  influences.  Probably  the 
most  efficient  step  that  could  be  taken  toward  the  prevention 
of  crime  and  the  social  evil  would,  be  to  provide  every  family 
with  a  home  of  its  own.  Homestead  entry  of  government 
land  is  now  available  only  to  the  very  few  and  will  soon 
cease  entirely  unless  title  is  reclaimed  from  private  owners. 
Exemption  of  homesteads  from  forced  sale  for  the  payment 
of  debts  does  not  give  homes  to  those  who  have  none.  All 
the  theories  of  the  law  are  theories  of  mastery  for  the  land- 
owner and  dependence  on  the  part  of  the  landless.  Many 
young  men  do  not  marry  because  they  are  not  able  to  provide 
homes,  and  young  women  cannot  marry  till  husbands  are 
available.  The  ancient  Peruvian  government  solved  these 
problems.  This  proves  that  it  is  not  only  possible  but  prac- 
ticable to  assign  to  each  family  a  share  of  the  face  of  the 
earth.  The  broad  question  which  every  state  must  answer 
by  its  laws  is,  shall  one  part  of  the  people  be  dependent  on 
another  for  an  abiding  place  on  the  earth?  The  answer  now 
given  is  yes.  Is  this  the  answer  that  accords  with  justice  and 
sound  public  policy  ? 


966  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

6.  Inheritance 

One  of  the  leading  causes  of  the  destruction  of  democracies 
has  been  rules  of  inheritance.  It  was  long  an  unsolved  puzzle 
to  the  writer,  why  so  many  cities  of  Europe  had  started  as 
democracies,  been  converted  into  oligarchies  and  then  subju- 
gated by  despotisms.  Illustrations  of  this  round  can  be 
found  in  great  number  among  the  free  cities  of  Greece,  Italy, 
Germany  and  Russia.  Notwithstanding  the  patent  fact,  that 
as  free  democracies  they  were  far  more  vigorous  and  pros- 
perous than  after  their  institutions  were  changed,  there 
seemed  to  be  a  fatality  that  doomed  every  democracy  to  de- 
struction and  that  fore-ordained  the  succession  of  a  tyrant. 
Having  always  held  firm  faith  in  the  final  triumph  of  that 
which  is  morally  best,  it  was  hard  to  understand  why  what 
seemed  both  a  less  just  and  less  efficient  form  of  social  or- 
ganization persistently  supplanted  a  better  one.  The  secret 
lies  in  the  unjust  rule  of  the  transmission  of  property  by  in- 
heritance, coupled  with  the  theory  of  absolute  title  to  land. 
On  these  most  legal  tyranny  is  based.  The  practical 
operation  of  laws  of  inheritance  is  easily  traced.  In  the  first 
generation  the  most  crafty  and  energetic  gain  the  largest 
shares  of  wealth.  The  indolent  and  improvident  remain  poor. 
In  the  next  generation  some  inheritances  are  dissipated  by 
improvident  heirs,  others  are  preserved  and  increased.  In- 
termarriages occur  mainly  between  those  of  the  same  class, 
and  fortunes  are  thus  consolidated.  In  the  course  of  time  a 
few  great  estates  absorb  the  whole  landed  property,  and 
much  of  the  movable  as  well,  and  the  society  is  divided  into 
the  few  rich  and  the  many  poor.  So  long  as  officials  are 
chosen  by  vote  of  the  whole,  the  more  wealthy  and  prominent 
men  are  usually  elected.  Elections  then  become  either  a  mere 
matter  of  form  or  are  dispensed  with.  The  few  families, 
which  have  the  property,  have  also  the  political  power.  Some- 
times, as  at  Venice,  a  close  corporation  is  formed,  which 
rigidly  excludes  all  new  aspirants  for  political  influence. 
When  this  stage  is  reached  decay  sets  in.  The  ruling  class 
seek  enjoyment  of  their  riches  rather  than  the  public  good. 


GENERALIZATIONS  967 

The  great  multitude  struggle  along  in  ignorance  and  poverty. 
The  law  of  natural  selection  of  leaders  in  business  and  state 
affairs  is  stifled.  In  and  in  breeding  causes  physical  and 
mental  decay  in  the  ruling  class.  Experience  everywhere 
shows  that  the  strongest  and  brightest  men  come  quite  as 
frequently  from  the  poorer  classes  as  from  the  wealthy,  but 
where  both  the  management  of  properties  and  the  direction 
of  public  affairs  are  denied  them,  the  state  loses  their  natural 
force.  Thus  it  happens  that  the  pubHc  get  neither  the  benefit 
of  the  natural  strength  of  the  few  rich  or  the  many  poor. 
The  energies  of  the  rich  are  deadened  by  afHuence  and  easy 
living,  and  those  of  the  poor  by  want  and  ignorance. 

The  maximum  of  energy  can  only  be  maintained  by  start- 
ing the  members  of  each  generation  on  a  substantially  equal 
footing,  and  requiring  each  individual  to  demonstrate  his 
ability  to  make  good  use  of  wealth  and  power  before  entrust- 
ing him  with  it.  The  law  of  inheritance  passes  the  wealth 
and  power  of  the  father  to  the  son,  no  matter  how  weak,  im- 
moral or  unfit  he  may  be  to  use  it.  A  rule  of  primogeniture 
accentuates  the  evil.  The  law  which  executes  the  will  of  the 
testator,  as  a  general  proposition,  merely  substitutes  a  private 
rule  of  inheritance  for  the  public  law.  In  practical  operation 
it  works  out  substantially  the  same  results  and  passes  the 
property  to  one  or  more  favored  members  of  the  donors 
family,  and  in  case  of  a  failure  of  issue  supplies  the  want  by 
selecting  some  favorite  from  without  the  family. 

Nowhere  are  the  effects  of  the  laws  of  inheritance  more 
clearly  shown  than  in  the  city  of  New  York,  where  all  the 
landed  property  has  already  been  concentrated  into  the  hands 
of  about  six  per  cent  of  the  families,  leaving  the  other  ninety- 
four  per  cent  as  their  tenants.  Most  of  the  great  estates  have 
passed  down  from  generation  to  generation  from  the  early 
Dutch  settlers.  The  great  wealth  of  most  of  the  proudest 
families  is  due  to  no  merit  of  the  present  owners,  and  they 
live  in  unearned  luxury,  while  performing  no  useful  function 
for  the  public.  It  is  fundamentally  wrong  and  wholly  unjust 
to  start  six  per  cent  of  the  children  born  in  New  York  as  the 
owners  of  all  of  it,  and  the  other  ninety-four  per  cent  as 


968  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

subject  to  whatever  terms  the  six  per  cent  may  impose  for 
Hving-  on  the  island.  Justice  demands  of  the  state  that  it  give 
to  each  member  of  each  generation  fair  treatment.  This  im- 
plies education  and  a  portion  of  the  face  of  the  earth.  Noth- 
ing is  more  firmly  rooted  in  the  prejudices  of  the  people  than 
the  rules  of  inheritance  and  the  power  to  make  testamentary 
disposition  of  property,  yet  no  other  legal  rules  work  out 
either  so  much  injustice  or  so  many  public  disadvantages. 

The  greatest  force  to  laws  of  inheritance  is  found  in  India, 
where  not  only  the  property  of  the  ancestor  passes  to  the 
heir,  but  also  his  social  status  and  occupation.  The  extreme 
rigidity  of  this  system  has  been  often  remarked,  but  the  fact 
that  it  has  its  basis  in  a  theory  of  inheritance  and  is  but  an- 
other harmful  application  of  it  seems  to  be  generally  over- 
looked. Hindoo  law  makes  most  minute  provisions  for  the 
transmission  of  property  by  descent.  The  law  of  caste  sepa- 
rates the  people  of  one  generation  into  classes  and  then  passes 
that  division  down  from  generation  to  generation.  That  it  is 
contrary  to  nature  is  abundantly  demonstrated  by  the  numer- 
ous violations  of  it,  which  have  resulted  in  the  production  of 
so  many  sub-castes.  In  its  operations  it  is  far  more  arbitrary 
and  restrictive  of  personal  liberty  than  any  despotism  of  a 
single  ruler  can  possibly  be,  for  it  places  the  individual  in  a 
vice  where  he  cannot  move  to  better  his  condition.  It  tends 
to  idleness  when  conditions  are  unfavorable  to  the  inherited 
calling,  to  inordinate  pride  among  the  highest  castes  and 
extreme  servility  among  the  lowest.  It  stifles  spontaneity  of 
individual  effort,  because  of  the  limitations  imposed  on  the 
right  of  an  individual  to  select  his  own  calling  and  to  fol- 
low a  variety  of  occupations.  Trade  guilds  and  labor  unions 
are  extremely  mild  in  their  dictations  to  their  members  when 
compared  with  the  Indian  castes.  The  enforcement  of  these 
restrictions  is  not  dependent  on  a  ruler  or  on  the  whole  body 
of  government  officials.  Not  only  the  Brahmans  and  the 
military  caste,  but  all  the  castes  and  the  whole  weight  of  re- 
ligious influence,  education  and  public  sentiment  unite  in  en- 
forcing this  most  harmful  system.  So  completely  are  all  the 
people  imbued  with  devotion  to  the  plan  of  their  social  or- 


GENERALIZATIONS  969 

ganizatiun,  that  to  attempt  a  reform  is  to  oppose  the  whole 
mass,  yet  the  whole  scheme  is  dependent  on  a  purely  artificial 
law  of  inheritance,  which  is  neither  founded  on  sound  morals 
or  expediency. 

As  with  the  laws  recognizing  slavery,  men  cling  to  rules  of 
inheritance  with  great  tenacity,  because  they  give  advantages 
to  those  of  most  influence.  The  poor  and  ignorant  fail  to 
grasp  their  effects.  In  the  southern  states  the  poor  whites, 
who  suffered  almost  as  much  from  slavery  as  the  slaves  them- 
selves, took  great  pride  in  their  superiority  as  freemen,  and, 
when  the  war  came,  went  out  and  fought  for  slavery  under 
the  guise  of  states  rights.  The  poor  and  landless  now  gener- 
ally believe  in  the  land  and  inheritance  laws. 

Novels,  which  are  read  far  more  than  any  other  class  of 
books,  often  picture  the  hero  or  the  heroine  as  finally  re- 
warded for  suffering  and  tribulation  with  an  estate  from  some 
relative.  The  popular  fancy  still  calls  for  unearned  wealth. 
Fair  compensation  for  services  rendered,  added  to  a  fair 
share  of  the  natural  wealth  of  the  earth  and  the  accumula- 
tions of  past  generations,  fails  to  satisfy.  The  average  man 
or  woman  wants  a  great  gift  from  fortune,  rather  than 
justice. 

The  ancient  Peruvians  appear  to  have  been  the  only  people 
who  had  a  just  conception  of  the  relation  of  the  state  to  its 
people  in  regard  to  inheritances,  but  there  was  much  to  con- 
demn in  their  system.  The  state  assigned  to  each  newly  mar- 
ried pair  a  home,  and  also  distributed  among  its  people  a 
share  of  the  products  of  the  flocks,  herds,  mines  and  fisheries. 
All  took  their  patrimonies,  not  from  their  ancestors,  but  from 
the  state  as  the  common  father  of  all.  The  Inca  however 
took  an  inordinate  share  for  his  household,  and,  worst  of  all, 
there  was  no  room  for  the  exercise  of  the  inventive  genius 
of  the  people.  All  were  tied  down  by  a  rigid  system,  which 
they  could  neither  change  nor  break  away  from.  The  idea 
however  of  the  state  as  the  heir  of  all  deceased  persons,  bound 
to  assign  to  each  child  its  share  of  all  the  estates,  is  one  that 
the  people  of  the  most  advanced  nations  may  well  consider. 
In  no  other  manner  can  full  justice  be  done  to  each  genera- 


970  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

tion.  In  no  other  way  can  the  full  strength  and  energy  of 
each  individual  in  the  race  of  life  be  as  surely  called  out  as 
by  giving  to  each  an  equal  start  in  a  fair  field.  Natural  se- 
lection then  takes  place;  the  strongest  and  ablest  lead,  and 
the  weak  and  sluggish  follow.  This  is  the  natural  law.  The 
artificial  rules  of  land  titles  enduring  after  death,  and  of  in- 
heritance of  property,  deaden  the  energies  of  the  so-called 
fortunate  heirs  of  wealth  by  removing  the  necessity  for  effort, 
and  lessen  the  efficiency  of  the  children  of  the  poor  by  depriv- 
ing them  of  the  means  to  do  with. 

In  all  ages  and  in  every  country  the  maximum  of  all  virtues 
is  found  among  the  middle  class,  who  are  above  immediate 
want  and  yet  under  the  necessity  of  exercising  industry  and 
economy.  Public  policy  requires  that  each  member  of  so- 
ciety should  perform  a  useful  part  and  render  service  in  re- 
turn for  all  services  received.  Inherited  wealth  enables  the 
heir  to  receive  service  and  return  none.  The  state  thus  loses 
the  benefit  of  the  work  the  heir  should  have  done  and,  what 
is  often  of  far  more  consequence,  the  labor  expended  in  waste- 
ful extravagance.  The  services  of  the  great  retinue  of 
servants,  maintained  by  some  people  of  great  wealth  merely 
to  minister  to  their  personal  vanity,  are  wholly  wasted  and 
usually  give  no  real  enjoyment  to  the  master.  The  healthy, 
enjoyable  life  must  always  be  the  life  of  useful  activities,  in 
the  benefits  of  which  others  share.  The  evil  influences,  which 
great* inheritances  have  on  the  heirs,  begin  usually  as  soon  as 
the  child  is  taught  to  expect  the  estate,  and  that  labor  to  earn 
a  subsistence  will  be  unnecessary.  They  end  only  with  death. 
Where  a  great  estate  falls  to  an  infant  of  tender  years,  the 
title  is  vested  in  an  owner  incapable  of  managing  it,  where  it 
vests  in  a  profligate,  it  is  wasted  in  riotous  living.  In  practice 
any  system  that  would  meet  general  approval  would  doubtless 
leave  the  home  in  the  possession  of  the  family  of  the  deceased 
owner.  It  is  probable  that  it  would  also  leave  to  them  the 
farm  of  limited  size,  the  work  shop,  the  store,  or  other  place 
of  business  of  limited  value  and  necessary  for  earning  a  liveli- 
hood, where  there  is  a  member  of  the  family  able  to  use  it. 

The  radical  change,  which  would  seem  desirable,  is  one 


GENERALIZATIONS  97i 

cutting  off  the  transmission  of  great  estates  to  unworthy 
hands,  and  placing  them  in  the  hands  of  the  pubHc  for  distri- 
bution in  such  manner  as  will  best  promote  the  general  wel- 
fare. Like  all  other  radical  changes  of  system,  it  can  only  be 
effected  when  the  public  demand  it.  The  imposition  of  in- 
heritance taxes  is  a  timid  start  toward  the  curtailment  of 
great  inheritances. 

7.  Contracts 

The  law  of  contracts  necessarily  extends  over  the  whole 
field  of  commercial  transactions,  industrial  relations  and  in- 
vestments. Its  subject  matter  includes  the  land  and  all  that 
grows  upon  or  lies  beneath  it,  all  movable  things  and  all  the 
artificial  and  intangible  forms  of  property  and  assurances  of 
benefits  that  men  devise.  In  the  most  advanced  states  living 
persons  are  no  longer  subjects  of  bargain  and  sale  but  con- 
tracts for  their  services  grow  in  number  and  variety.  Slavery 
having  been  abolished,  every  person  of  full  age  and  sound 
mind  except  married  women  is  theoretically  free  to  buy  and 
sell  whatever  he  can  and  make  all  sorts  of  contracts  for  ser- 
vice from  or  to  others.  For  their  protection  minors  are 
shielded  from  improvident  contracts  made  prior  to  an  age 
arbitrarily  fixed  in  most  countries  at  twenty-one  years.  In 
many  of  the  American  states  married  women  now  have  sub- 
stantially the  same  right  to  make  contracts  and  acquire  prop- 
erty that  men  have. 

Freedom  of  contract  is  of  the  very  essence  of  liberty. 
There  can  be  no  doubt  that  the  modern  increase  in  industrial 
and  commercial  activities  is  largely  due  to  increased  freedom 
of  contract  and  of  occupation.  The  abolition  of  slavery  in 
the  southern  states  instead  of  ruining  their  industries  ulti- 
mately stimulated  them.  Service  under  contract  gives  better 
results  than  slave  service.  The  abolition  of  serfdom  in  Rus- 
sia has  resulted  similarly.  The  modern  tendency  everywhere 
is  to  take  away  restrictions  on  the  right  of  the  poor  to  change 
locations  and  masters.  There  is  also  a  general  tendency  to 
throw  off  restrictions  on  the  purchase  and  sale  of  land  and 
on  the  importation  and  exportation  of  products   from  one 


972  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

nation  to  another.  It  is  perceived  that  full  advantage  of  nat- 
ural conditions  can  only  be  taken  by  allowing  the  shifting  of 
population  according  to  needs  and  conditions  and  the  pro- 
duction in  each  place  of  the  commodities  for  which  the  cli- 
matic conditions  and  natural  facilities  best  adapt  it. 

There  is  no  difficulty  in  making  the  law  in  terms  confer  full 
liberty  to  make  contracts,  but  to  secure  by  legislation  fairness 
and  equality  in  dictating  their  provisions  involves  endless 
complications.  There  is  full  liberty  in  many  states  to  nego- 
tiate contracts  concerning  land,  but  no  approximation  to 
equality  of  control  over  their  terms.  Ownership  of  land  is 
monopolistic  in  its  nature.  Even  where  the  law  imposes  no 
restrictions  on  dealings  in  land  the  competition  of  sellers  in 
the  market  is  limited  to  the  particular  tracts  that  the  owners 
are  willing  to  sell.  All  the  rest  is  withdrawn  from  the  market. 
If  the  competition  between  buyers  were  limited  to  landless 
ones  the  situation  would  not  be  so  unfavorable  to  them,  but 
the  fact  is  that  great  landowners  are  often  the  most  persistent 
land-buyers.  Those  who  derive  large  incomes  from  rents 
affording  them  a  surplus  for  investment  often  use  it  to  in- 
crease their  holdings.  The  tenant  of  farming  land  is  not  a 
formidable  competitor  of  his  landlord  in  the  land  market. 
The  landlord  is  usually  in  a  position  to  prevent  him  from 
having  any  surplus  income  to  invest.  In  many  countries  the 
law  interposes  artificial  obstacles  in  the  way  of  the  landless 
purchaser. 

The  advantage  of  the  land-owner  in  making  contracts  re- 
lating to  the  use  of  his  own  land  is  even  more  marked.  People 
multiply,  but  the  land  area  neither  multiplies  nor  stretches. 
All  must  have  abiding  places.  Every  newcomer  requires  a 
part  of  that  which  is  already  the  private  property  of  another. 
He  can  use  it  only  on  the  terms  imposed  by  the  owner.  If 
a  tenant  increases  the  fertility  of  the  land  he  tills  or  other- 
wise improves  it  the  landlord  may  increase  his  rent  accord- 
ingly. In  a  city  the  more  costly  the  buildings  erected  by  a 
tenant  the  higher  the  ground  rent.  These  advantages  held 
by  the  land-owner  are  wholly  unearned  and  unmerited  and  due 
solely  to  the  system  of  land  monopoly  sanctioned  by  the  law. 


GENERALIZATIONS  973 

The  same  principle  of  monopoly  applies  also  in  the  labor 
market.  Agricultural  laborers  can  find  employment  only 
from  the  farmers.  The  supply  of  land  is  strictly  limited  and 
the  owners  may  determine  absolutely  what  work  shall  be  done 
on  it.  The  number  of  laborers  may  fluctuate  but  whether 
few  or  many  all  must  accept  the  terms  offered  or  starve,  so 
far  as  this  line  of  employment  is  concerned.  The  monopoly 
of  labor  applies  more  acutely  where  great  numbers  of  oper- 
atives are  dependent  on  a  single  mill,  mine,  factory  or  other 
industry  and  must  accept  the  terms  offered  by  the  employer  or 
migrate  to  another. place.  Not  merely  the  rate  of  wages  but 
the  conditions  of  service  are  dictated  by  the  employer,  except 
as  the  employees  are  able  to  approximate  equality  of  position 
through  combination  and  dealing  as  a  unit.  Some  semblance 
of  a  monopoly  of  the  supply  of  labor  for  certain  lines  of 
work  is  sometimes  effected  through  labor  unions,  but  the 
need  of  wages  on  the  part  of  the  laborer  is  ordinarily  far 
more  urgent  than  the  need  for  help  on  the  part  of  the  em- 
ployer, and  the  closest  combination  falls  short  of  giving 
equality  of  position  in  most  cases.  There  are  cases  of  the 
ruin  of  employers  by  strikes  of  the  laborers.  Industrial  war- 
fare is  of  the  nature  of  war,  wasteful  and  destructive  to  all 
engaged  in  it.  The  relation  of  the  law  to  the  parties  to  such 
contests  is  more  remote  than  in  those  relating  to  land.  The 
law  does  not  directly  confer  the  advantage,  but  it  is  often 
due  to  superior  capacity  exhibited  in  building  up  the  employ- 
ers business.  Most  great  enterprises  however  are  now  car- 
ried on  under  corporate  charters  granted  by  the  state.  The 
strength  of  the  company  arises  from  the  law  which  authorizes 
the  combination  of  capital  and  energy  under  a  single  head. 
This  in  its  inception  is  a  combination  of  interests  and  natur- 
ally suggests  and  leads  to  further  combinations  and  consoli- 
dations resulting  in  great  manufacturing,  trading,  mining 
and  transportation  monopolies,  many  of  which  are  able  to 
dictate,  not  merely  terms  of  employment  to  their  laborers,  but 
also  the  terms  of  their  contracts  with  all  others  with  whom 
they  deal  as  bu3^ers,  sellers,  carriers  or  bailees.  These  arti- 
ficial entities  being  dependent  on  the  law  for  their  existence 


974  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

are  subject  to  visitation  by  the  law-making  power  for  the 
correction  of  whatever  abuses  of  their  privileges  they  may 
be  guilty. 

In  many  instances  laws  are  passed  for  the  avowed  purpose 
of  aiding  one  party  to  a  class  of  contracts.  As  we  have  seen, 
in  the  reign  of  Elizabeth  of  England  favorites  were  enriched 
by  grants  of  trade  monopolies  enforced  by  the  government. 
Many  modern  nations  give  the  domestic  producers  of  certain 
classes  of  commodities  advantages  in  the  home  markets  by 
means  of  protective  tariffs  imposing  burdens  on  international 
competition.  The  tax  levied  on  the  imported  foreign  product 
is  imposed  rather  to  shut  out  competition  by  the  foreign  pro- 
ducer than  to  raise  revenue  for  the  government.  To  stimulate 
inventive  genius  inventors  are  given  monopolies  of  their  in- 
ventions for  limited  periods.  Buyers  must  accept  their  terms 
of  sale  till  the  patent  expires,  but  at  the  end  the  public  gets 
the  full  benefit  of  the  invention.  Similar  encouragement  is 
given  to  authors  and  artists. 

Added  to  these  are  less  easily  classified  enforceable  con- 
tracts made  under  conditions  of  mastery  and  dictation  of  one 
over  another.  The  courts  refuse  to  enforce  contracts  made 
under  compulsion,  but  legal  duress  falls  far  short  of  includ- 
ing all  cases  in  which  the  strong  and  crafty  overawe  or  over- 
reach the  weak  and  confiding.  Having  shielded  minors, 
insane  and  imbecile  persons  from  improvident  contracts,  it 
was  long  deemed  sound  public  policy  to  require  each  person 
to  protect  his  own  interests  in  his  dealings  and  to  enforce 
whatever  agreements  the  parties  make  in  lawful  transactions. 
Modern  legislatures  have  come  to  take  cognizance  of  some 
of  these  positions  of  advantage,  especially  on  the  part  of 
employers  and  to  avoid  such  terms  as  are  designed  to  shield 
them  from  reasonable  care  for  the  health,  safety  and  morality 
of  their  operatives. 

The  law  of  most  countries  requires  some  formal  requisites 
for  certain  classes  of  contracts.  What  is  termed  the  Statute 
of  Frauds  and  Perjuries  requires  contracts  for  the  sale  of 
lands  and  various  other  classes  of  contracts  to  be  in  writing 
and  signed  by  the  party  to  be  charged  thereunder,  and  is  very 


GENERALIZATIONS  975 

generally  in  force  in  English-speaking  countries.  The  Com- 
mon Law  recognizes  differences  in  the  legal  force  of  dift'erent 
forms  of  written  contracts,  ranging  all  the  way  from  the 
absolute  conclusiveness  of  judgments  of  courts  and  public 
records  of  certain  kinds  to  the  mere  prima  facie  disputable 
evidence  of  a  receipt  for  money.  Requirements  of  written 
evidence  of  contracts  and  promises  are  based  on  distrust  of 
oral  testimony  and  human  memory.  Written  instruments 
have  the  advantage  of  unfailing  memory,  and  in  the  process 
of  reducing  an  agreement  to  writing  it  becomes  necessary  to 
make  its  terms  clear  and  definite  so  that  they  can  be  accur- 
ately stated.  The  statute  is  designed  mainly  to  protect  against 
certain  classes  of  promises  unless  they  are  in  writing.  Like 
all  rigid  rules  relating  to  human  dealings  it  works  injustice 
in  many  cases,  yet  seems  to  be  regarded  with  general  favor. 
The  Roman  law  and  the  Civil  Codes  of  France  and  Germany 
make  different  classifications  and  prescribe  different  formali- 
ties, but  make  requirements  based  on  the  same  reasoning. 

Contracts  for  the  payment  of  money,  made  in  the  form 
of  negotiable  paper  play  an  important  part  in  the  business 
world.  The  rule  cutting  off  all  defenses  to  such  contracts  in 
the  hands  of  bona  fide  holders  for  value  without  notice  of 
such  defenses  seems  reasonable  and  necessary  for  the  pro- 
tection of  those  who  take  such  paper  in  lieu  of  money  in 
commercial  dealings,  but  when  applied  to  promissory  notes 
bought  as  an  investment  often  aids  swindlers  working  in 
combination  to  enforce  the  payment  of  notes  fraudulently  ob- 
tained for  no  good  consideration. 

While  it  is  a  long  established  rule  of  jurisprudence  through- 
out Europe  and  America  that  the  law  will  not  enforce  immoral 
contracts,  the  standard  of  morality  recognized  by  the  courts 
has  not  always  been  an  exalted  one.  In  commercial  dealings 
there  is  ordinarily  an  element  of  chance  for  gain  or  loss  that 
cannot  be  measured  accurately,  and  some  merchants  grow 
rich  while  others  lose  their  little  capital.  Dealings  in  the 
stock  markets  and  on  boards  of  trade  appear  in  form  to  be 
similar  to  the  business  of  the  merchants,  but  the  purchase  and 
sale  of  stocks,  grain  and  provision  for  future  delivery,   al- 


976  EVOLUTION  OF  GOVERNMF^NTS  AND  LAWS 

though  in  form  legitimate  commercial  contracts,  are  largely 
mere  bets  on  the  rise  and  fall  of  prices  in  the  markets.  Dis- 
honest combinations  of  speculators  to  cause  abnormal  fluctu- 
ations of  prices  are  natural  attendants  of  such  operations,  and 
many  of  the  modern  abnormal  accumulations  of  wealth  come 
from  such  dealings.  Under  the  new  German  Code  such  con- 
tracts are  void.  The  discovery  and  production  of  mineral 
wealth  is  in  its  nature  speculative  and  uncertain,  and  dealings 
in  mines  and  mining  shares  are  necessarily  uncertain  ventures. 
Only  through  combinations  sufficiently  large  to  give  a  gen- 
eral average  of  results  can  there  be  a  fair  distribution  of 
profits  and  losses  and  the  ruin  of  some  and  the  enrichment  of 
others  avoided.  This  principle  of  distributing  burdens  and 
sharing  benefits  is  well  illustrated  by  contracts  of  insurance 
of  life  and  property  which  in  form  appear  very  much  like 
wagers  at  great  odds  that  a  person  will  not  die  or  a  house 
will  not  burn  within  a  given  period,  yet  are  in  fact  quite 
scientific  methods  of  distributing  and  equalizing  the  burdens 
of  disaster  and  the  waste  caused  by  the  elements.  The  wrongs 
perpetrated  through  unfair  and  immoral  contracts  which  the 
law-makers  deal  with  now  are  similar  to  those  encountered 
in  the  past,  but  as  human  relations  grow  in  complexity  the 
difficulties  attending  the  enforcement  of  fundamental  moral 
principles  increase.  It  is  easy  to  declare  in  terms  that  the 
public  force  shall  not  be  used  to  aid  the  extortioner,  the 
gambler  or  the  immoral  operator  in  his  schemes,  but  it  is 
not  easy  to  determine  just  where  and  to  what  extent  elements 
of  extortion,  gambling  and  immorality  have  entered  into  hu- 
man dealings,  to  afford  full  relief  from  their  evil  consequences 
and  still  allow  the  measure  of  liberty  necessary  for  healthy 
business  activity. 

The  suppression  of  lotteries  and  gambling  houses,  the  re- 
quirement of  publicity  of  the  financial  condition  of  banking, 
railroad  and  other  corporations,  the  regulation  of  the  charges 
of  public  service  corporations,  provisions  for  the  safety  and 
health  of  employees  and  efforts  to  prevent  monopolistic  com- 
binations, evidence  a  growing  appreciation  of  the  application 
of  higher  moral  standards  to  the  law  of  contracts.     Some 


GENERALIZATIO'NS  977 

European  governments  still  profit  from  the  vices  of  lotteries 
and  gambling  houses  which  they  license,  but  in  the  United 
States  the  effort  is  to  suppress  them. 

For  the  enforcement  of  contracts  of  every  kind  and  char- 
acter the  parties  are  dependent  on  the  law,  the  courts  and  the 
public  force.  Shall  the  state  give  effect  to  those  having  any 
taint  of  unfairness  or  immorality?  The  answer  to  the  ques- 
tion cannot  be  a  clear  and  unqualified  negative  because  of  the 
difficulty  in  applying  nice  moral  tests.  Legislatures  and 
courts  can  at  the  best  undertake  to  make  only  a  fair  approxi- 
mation by  general  rules  to  the  enforcement  of  moral  stand- 
ards. Those  who  profit  largely  from  unfair  conditions  and 
unjust  laws  are  in  all  countries  in  positions  of  more  or  less 
advantage  to  influence  governmental  action  and  the  power- 
ful are  seldom  wedded  to  the  most  exalted  conceptions  of 
right.  If  they  were  so  they  would  regard  their  unearned 
wealth  as  a  trust  held  for  the  use  of  others.  So  long  as  the 
great  multitude  remain  ignorant  and  illiterate  oppression  and 
wrong  flourish,  but  with  the  general  diffusion  of  knowledge 
and  the  extension  of  representative  government  law-makers 
and  courts  are  brought  to  see  more  of  every  side  of  public 
questions  and  to  feel  impulses  from  the  weak  and  destitute 
as  well  as  from  the  rich  and  powerful  and  the  law  of  con- 
tracts becomes  imbued  with  more  of  the  spirit  of  justice. 

8.  Combinations 

This  is  the  age  of  private  combinations.  A  very  good  test 
of  the  stage  of  civilization  which  a  people  have  reached  is  the 
number,  extent  and  purposes  of  the  voluntary  combinations 
they  form.  No  great  undertaking  can  be  carried  forward 
without  combination  and  concert  of  action  of  many  people 
working  toward  a  common  end.  The  most  potent  incentive 
to  great  combinations  has  usually  been  war,  and  the  form 
military.  All  great  military  leaders  have  excelled  in  capacity 
for  organization  and  direction  of  the  operations  of  great 
numbers  working  with  a  common  purpose.  The  saying  "in 
time  of  peace  prepare  for  war"  expresses  the  necessity  for 
the  employment  of  peaceful  activities  as  prerequisite  to  war- 


978  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

like  ones.  Among  savages  bows,  arrows  and  other  crude 
weapons  must  be  made  and  an  understanding  reached  as  to 
the  men  who  are  to  use  them  and  the  time  and  manner  of 
attack  or  defense.  As  civiHzation  advanced  it  was  soon  per- 
ceived that  continuance  of  the  struggle  depended  not  merely 
on  numbers  of  men  and  supplies  of  arms  but  also  of  food  and 
clothing.  Granaries  had  to  be  filled,  clothing  made  and  trans- 
portation of  supplies  provided  for.  To  facilitate  military 
operations  the  Romans  and  Peruvians  became  great  road  and 
bridge  builders.  The  Greeks  and  Phoenicians  gave  more  at- 
tention to  their  boats,  and  the  Persians  and  Hindoos  to  horses, 
chariots  and  elephants.  The  invention  of  gunpowder  made 
necessary  not  merely  its  manufacture  but  a  long  chain  of  in- 
dustrial activities  for  the  production  from  iron  ore  of  guns 
and  the  construction  of  carriages  and  attendant  equipments. 
With  the  use  of  costly  weapons  and  soldiers  trained  to  use 
them  comes  the  necessity  for  a  burden  of  taxation  to  defray 
the  expenses,  involving  a  peaceful  organization  to  extort 
money  for  war  and  its  incidents.  As  new  forms  of  high  ex- 
plosives have  been  invented  it  has  been  rendered  necessary  to 
strengthen  the  forms  and  fibre  of  the  guns  and  add  costly 
machinery  to  handle  them.  Warships  must  be  large  enough 
to  bear  ponderous  armament  and  be  shielded  with  armor  plate 
to  resist  the  shots  of  like  guns.  A  long  chain  of  industries 
extending  from  the  iron  and  coal  mines  through  the  furnaces, 
foundries  and  mills  to  the  forts,  arsenals  and  ships  is  now 
maintained  to  fill  the  demands  of  modern  armaments.  Food, 
clothing,  hospital  equipments  and  supplies  and  all  the  para- 
phernalia of  camp  and  battleship  must  be  produced  and  stored 
to  await  the  contingency  of  unrestrained  national  greed  or 
hatred.  The  one  great  useful  lesson  that  war  teaches  is  the 
value  of  combined  effort  to  a  common  end.  Courage,  devo- 
tion to  duty,  patriotism  and  all  the  other  virtues  of  the  private 
soldier  meet  disaster  if  efficient  combination  and  concert  of 
action  is  wanting.  But  the  purpose  of  all  this  long  chain  of 
preparation  is  death  and  destruction.  The  possession  of  a 
great  armament  excites  distrust  and  arouses  enmity.  Lasting 
peace  and  security  is  and  always  must  be  dependent  on  mutual 


GENERAOZATIO'XS  979 

confidence  and  good  will.  For  two  men  to  arm  for  conflict 
with  each  other  manifestly  has  no  tendency  to  promote  neigh- 
borly conduct  or  good  will.  The  tendency  of  national  arma- 
ments is  the  same.  Why  not  substitute  activities  designed  to 
promote  good  understandings  and  mutual  confidence  for  these 
hateful  ones?  Both  consciously  and  unconsciously  the  substi- 
tution is  being  made.  The  inventions  that  vivify  have  far 
outstripped  those  that  destroy.  By  the  use  of  high  explosives 
a  cannon  ball  may  work  havoc  twenty  miles  away,  but  peaceful 
communication  leading  to  good  understanding  and  mutual 
help  may  be  had  almost  instantly  between  people  on  opposite 
sides  of  the  globe.  While  forts  are  built  to  protect  seaports 
against  hostile  attacks,  lights  and  buoys  to  safely  guide 
friendly  commerce,  breakwaters  to  shield  against  storms,  piers 
and  docks  to  afford  safe  and  easy  landings  are  constructed  to 
welcome  all  who  come  on  peaceful  missions.  Torpedoes  are 
sometimes  placed  in  channels  and  harbors  for  the  destruction 
of  the  warships  of  enemies,  but  vastly  greater  effort  is  ex- 
pended in  removing  rocks  and  reefs  and  deepening  and  widen- 
ing channels  to  make  safe  the  entry  and  exit  of  merchant 
ships.  The  ancient  Chinese  Empire  was  shielded  from  hostile 
attacks  by  the  great  unexplored  oceon  on  the  east,  the  Him- 
alayas, Kuen-Lun  and  Thian-Shan  mountains  on  the  south 
and  west  and  they  built  the  great  wall  to  complete  the  circuit 
of  their  defenses.  Thus  isolated  they  developed  their  unique 
civilization  uncontaminated  from  without,  except  when  the 
Tartar  hordes  broke  through  the  barriers  and  established  their 
rulership  over  them.  Japan  produced  its  busy  millions  in 
isolation  from  the  distant  west.  Foreign  warships  and  sol- 
diers have  come  to  these  peaceful  people  in  this  age  of  inter- 
course and  taught  them  their  superiority  in  the  art  of 
destruction.  But  foreigners  have  also  brought  ship  loads  of 
unheard  of  inventions  and  useful  things,  knowledge  of  nat- 
ural laws,  of  the  material  world,  of  the  processes  of  nature, 
of  medicine,  sciences  and  arts  of  which  they  knew  little  or 
nothing,  and  have  opened  distant  markets  for  their  peculiar 
products.  Though  the  destructive  agencies  excite  fear  and 
distrust,  the  peaceful  influences  induce  friendships.     Combi- 


98o  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

nations  are  formed  for  the  exchange  of  products  and  to  gain 
mutual  benefits  through  which  the  bonds  of  confidence  stead- 
ily gain  strength.  The  dark  cold  visage  of  the  foreign  de- 
stroyer changes  to  light  and  warmth,  and  the  "foreign  devil" 
is  transformed  into  a  delightful  friend.  No  people  can  now 
live  in  complete  isolation.  The  advantages  flowing  from  the 
interchange  of  products  are  sufficient  to  induce  the  merchants 
to  transport  commodities  between  the  most  distant  lands. 
Each  nation  has  dealings  with  many  or  all  others,  and  it  has 
become  necessary  to  have  agreements  as  to  the  rights  and 
privileges  which  the  people  of  one  country  will  be  accorded 
in  another.  These  agreements  are  put  in  the  form  of  treaties 
which  rest  on  the  good  faith  of  the  parties  for  enforcement. 
A  breach  of  one  of  them  may  occasion  war  between  the 
parties,  but  war  leads  only  to  another  treaty.  While  there 
are  treaties  to  which  several  nations  are  parties,  the  general 
situation  is  one  of  separate  treaties  by  each  nation  with  each 
other  one,  all  dependent  on  good  faith  and  \^oluntary  compli- 
ance except  as  one  party  may  be  able  to  enforce  its  demands, 
right  or  wrong,  by  superior  force.  A  general  agreement  to 
submit  all  questions  arising  under  treaties  or  otherwise  be- 
I  tween  nations  to  impartial  arbitration  is  seen  to  be  the  next 
\  great  forward  stride  in  the  march  of  civilization,  and  the 
j  logical  culmination  of  governmental  combination.  The  long 
list  of  separate  treaties  is  a  modern  product,  nothing  similar 
having  been  possible  in  ancient  times. 

The  walls,  canals  and  temples  of  Babylon  and  China  evi- 
dence great  combination  of  effort  for  common  ends ;  the  walls 
for  protection;  the  canals  for  communication  and  water  sup- 
plies, and  the  temples  for  religious  rites,  all  tending  to  security 
and  comfort  for  the  people.  The  great  pyramids  of  Egypt 
prove  a  like  combination  of  effort,  but  apparently  designed 
only  for  the  gratification  of  kingly  pride.  These  combina- 
tions were  under  despotic  domination.  Modern  military  and 
naval  combinations  partake  of  the  despotic  character  of  all 
things  military  and  of  necessity  are  made  by  the  national 
governments..  The  folly,  the  wickedness  of  it  all  has  been 
freely  discussed  by  representatives  of  the  nations  in  the  Hague 


GENERALIZATIONS  981 

conferences,  and  the  inherent  savagery  of  war  has  been  con- 
demned in  whole  and  in  each  of  its  particulars,  but  the  bonds 
of  interest  and  of  good  will  between  people  whose  ancestors 
have  fought  and  killed  each  other  throughout  all  times  past 
are  not  yet  sufficiently  strong  to  inspire  general  confidence. 
The  task  of  making  them  so  is  being  performed  by  private 
and  quasi-public  agencies  and  by  indirection  more  certainly 
than  by  open  advocacy.     America's  settlement  shows  the  dif- 
ference in  potency  of  moral  and  immoral  combinations  and 
enterprises.    The  conquests  of  the  rich  and  civilized  countries 
of  Mexico  and  Peru  by  the  Spaniards  were  military.     The 
purpose  was  to  rob  the  natives  of  their  gold  and  silver,  with 
which  the  conquerors  were  dazzled.     Gunpowder  and  steel 
were  more  potent  than  the  primitive  arms  of  the  natives,  but 
they  merely  wrought  destruction.     No  bond  of  sympathy  was 
established  between  conquerors  and  conquered,  and  there  was 
no  thought  of  building  up  continuing  industries  for  mutual 
benefit.     The  robbers  carried  away  booty  after  destroying 
many  useful  structures  built  by  the  natives.     Conquest  meant 
desolation.    The  settlers  of  North  America  also  sought  gains, 
and  the  charters  granted  the  colonists  reserved  for  the  British 
crown  a  share  of  the  gold  and  silver  to  be  mined,  but  the 
savages  knew  nothing  of  gold  or  silver  and  the  mines  were 
far  from  the  regions  settled.    To  gain  profits  it  was  necessary 
to  combine  for  the  production  of  useful  things.     Robbery  and 
destruction  offered  no  rewards  but  the  uncultivated  land.    The 
inception    of    the    settlements    was    by    parties    organized    to 
come  across  the  ocean  in  ship  loads  and  take  possession  of 
the  country.     Scattered  settlements  near  the  coast  struggled 
to  produce  from  the  earth  means  of  subsistence.     In  time 
their  products  attracted  traders  and  slowly  at  first,  but  with 
increasing  strength,  agriculture,  trade. and  then  manufactures 
were  developed.     The  first  settlers  worked  mainly  in  separate 
families  and  small  groups,  but  with  a  constant  and  growing 
appreciation  of  the  advantages  of  mutual  help  and  concert  of 
action.     Self-reliance,  inventive  genius  and  capacity  for  adapt- 
ing means  to  ends  have  been  the  well  marked  characteristics 
of  the  European  settlers  of  North  America,  and  these  have 


982  EVOLUTION  OF  GOVERNMEiNTS  AND  LAWS 

produced  a  greater  variety  of  private  combinations  to  do 
useful  things  than  have  been  formed  in  any  other  part  of  the 
world.  Contemporaneously  with  the  settlement  of  America 
the  nations  of  Western  Europe,  at  first  more  especially  the 
Dutch  and  British,  organized  shipping  and  trading  companies 
in  great  number.  The  French,  Portuguese,  Spaniards  and 
Scandinavians  followed  in  similar  lines.  The  discovery  of 
America  was  soon  followed  by  the  discovery  of  the  other  un- 
known regions.  The  sea  was  a  great  highway,  open  to  all 
adventurers,  and  by  it  every  distant  shore  could  be  reached  by 
those  having  a  suitable  ship.  The  romantic  and  incredible 
tales  told  by  Marco  Polo  of  the  wealth  of  the  east  were  veri- 
fied, and  Europeans  sought  out  the  coveted  products  of  the 
orient. 

Inventive  genius  has  had  much  to  do  in  shaping  modern 
private  combinations.  The  invention  of  printing  aided  greatly 
in  spreading  information  concerning  distant  lands  and  people, 
but  did  not  at  once  occasion  any  great  organization  for  gath- 
ering and  distributing  information.  Now  press  and  news 
associations  are  world  wide,  and  the  educational  influences  of 
the  published  reports  of  the  doings  and  sayings  of  people  in 
all  parts  of  the  earth  are  the  most  potent  and  far-reaching  of 
all  in  breaking  down  the  barriers  of  prejudice  and  distrust. 
The  work  of  the  types  and  presses  is  dependent  for  its  effi- 
ciency on  a  multitude  of  ancillary  inventions.  The  paper 
used  requires  great  mills  and  paper  companies  and  multitudes 
of  laborers  to  convert  forests  into  paper.  The  manufacture 
of  printing  presses  is  itself  a  great  industry,  and  the  perfec- 
tion of  those  on  which  the  great  dailies  are  printed  has  in- 
volved a  multitude  of  inventions  of  mechanical  devices  which 
take  the  place  of  human  hands  and  bring  forth  with  marve- 
lous speed  and  perfection  the  story  of  a  day's  doings.  The 
efficiency  of  the  news-gathering  and  distributing  agencies  is 
dependent  on  still  other  great  inventions  and  combinations 
furnishing  the  facilities.  The  discovery  of  the  methods  of 
inducing,  conducting  and  breaking  currents  of  electricity  gives 
us  the  telegraph,  telephone  and  other  facilities  for  the  rapid 
transmission  of  messages.     To  use  these  a  network  of  wires 


GENERALIZATIONS  983 

Spreads  over  the  land  and  cables  across  the  seas.  The  wire- 
less waves  are  projected  through  the  air  from  towers,  caught 
up  far  away  and  interpreted.  A  perfect  understanding  by 
each  operator  of  the  work  of  the  others  is  essential  to  the 
use  of  these  inventions.  Combinations  are  formed  which  act 
as  carriers  of  information  and  on  these  the  press  and  public 
depend  for  the  transmission  of  the  news  to  be  printed.  These 
combinations  are  public  in  some  countries  and  private  in  oth- 
ers, but  all  work  in  concert  in  the  conveyance  of  news.  News- 
papers and  periodicals  having  been  printed  the  publishers  and 
the  public  are  dependent  on  another  great  organization,  the 
post  office,  for  transmission  and  delivery  to  the  readers.  Some 
falsehood  and  some  malice  find  expression  in  these  publica- 
tions, and  it  necessarily  results  that  their  influence  is  some- 
times evil,  but  this  is  exceptional.  The  general  purpose  of 
the  press  the  world  over  is  to  ascertain  and  publish  the  truth, 
expose  error  and  falsehood  and  promote  human  welfare.  So 
doing  it  leads  the  march  of  civilization.  To  the  types  and 
presses  we  are  also  indebted  for  the  crystalization  of  accumu- 
lated knowledge  in  the  form  of  books.  Educational  institu- 
tions whose  mission  it  is  to  disseminate  knowledge  and 
strengthen  mental  processes  are  mainly  dependent  on  books 
for  the  principles  they  teach.  Here  again  we  meet  a  great 
chain  of  combinations  working  together  for  the  elevation  of 
humanity  and  the  promotion  of  peace  on  earth  and  good  will 
to  men.  Science  is  truth.  Mathematical  science  is  demon- 
strable truth  from  which  errors  may  be  certainly  eliminated. 
Other  sciences  admit  of  more  or  less  approximation  to  abso- 
lute certainty.  Back  of  the  preparation  of  books  are  investi- 
gators working  singly  or  in  combinations  according  to  the 
nature  of  the  investigation.  Great  compilations  like  the 
encyclopedias  require  the  work  of  specialists  in  many  lines 
and  a  large  fund  to  defray  the  expense.  The  barriers  which 
formerly  prevented  the  utilization  of  the  learning  of  alien 
people  have  been  measurably  removed  by  interpreters,  and  the 
literary  and  philosophical  treasures  so  long  concealed  in  the 
hieroglyphics  of  the  Egyptians,  the  cuneiform  characters  of 
the  Babylonians,  the  Sanskrit  and  the  Chinese  writings,  are 


984  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

now  available  to  students.  The  great  universities  perform 
the  double  service  of  bringing  together  natives  of  all  coun- 
tries to  be  taught  the  same  truths  and  instructing  in  all  lan- 
guages. The  translation  and  pubHcation  of  the  sacred  books 
of  the  various  religions  afford  a  chance  for  comparison  of 
them  and  lead  to  the  rejection  of  the  palpable  falsehoods  and 
better  appreciation  of  their  moral  beauties.  Manifestly  truth 
v^ill  bear  every  test  and  alone  has  divine  sanction.  No  mat- 
ter v^hat  the  field  of  study  one  may  be  sure  of  divine  sanction 
of  his  conclusions  if  he  has  found  the  truth,  and  may  also 
safely  reject  palpable  falsehood,  no  matter  where  or  how  it  is 
written  or  asserted.  Modern  methods  of  investigation  lead 
toward  the  overthrow  of  all  false  theories  of  the  right  of 
man  to  rule  his  fellows,  and  of  all  false  claims  of  knowledge 
of  the  Infinite  and  special  commission  to  represent  and  speak 
for  the  Deity.  All  truth-tellers  speak  for  him  in  the  truths 
they  utter.  All  else  is  imposture.  Educational  influences 
tending  to  mutual  understanding  and  concert  of  action  among 
men  are  not  confined  to  the  schools  and  products  of  the  print- 
ing presses.  Every  combination  to  produce  useful  things  or 
perform  beneficial  services  teaches  a  practical  lesson  of  com- 
mon brotherhood. 

The  railroad  company  may  perhaps  be  singled  out  as  the 
most  advanced  type  of  modern  business  combination,  exhibit- 
ing some  evils  and  injustices,  but  withal  a  most  potent  edu- 
cator and  promoter  of  good  will.  To  bring  the  physical 
property  into  being  some  combine  their  capital  to  pay  for 
land,  materials,  labor  and  equipment,  and  become  the  stock 
and  bond  holders  of  the  corporation,  while  others  in  greater 
numbers  combine  their  labors  in  the  construction  of  the  road- 
way, buildings  and  rolling  stock.  As  the  physical  property 
comes  into  being  it  is  turned  over  to  an  operating  organiza- 
tion requiring  great  specialization  of  training  and  duties. 
Office  men,  track  men,  shop  men,  yard  men  and  train  men 
must  each  and  all  work  in  concert  for  the  accomplishment  of 
the  general  purposes  of  transportation  and  with  due  regard 
for  the  safety  of  each  other,  of  the  traveling  public,  of  those 
on  and  about  the  line  of  road  and  of  the  property  entrusted 


GENERALIZATIONS  985 

for  transportation.  Here  the  duty  of  man  to  his  fellow  man 
and  full  responsibility  for  the  welfare  of  others  finds  most 
ample  recognition.  The  traveler  enters  the  car,  sits  in  com- 
fort, goes  to  bed,  sleeps,  wakes  in  the  morning,  dresses,  eats, 
visits  with  his  fellow  passengers  or  reads  as  his  inclination 
moves  him,  in  confident  reliance  on  the  vigilance  of  all  whose 
duty  it  is  to  provide  for  his  safety  and  comfort  and  carry  him 
to  his  destination.  The  self-sacrificing  devotion  of  train  men 
to  duty  is  proverbial  and  exhibitions  of  it  hardly  excite  notice. 
Engineers,  firemen,  brakemen  and  conductors  sacrifice  their 
own  lives  to  save  those  for  whose  safety  they  are  responsible. 
Lines  of  railroad  are  arteries  along  which  the  pulsations  of 
human  life  flow,  and  the  attendant  telegraphs  and  telephones 
are  the  nerves  of  sensation  and  motion.  The  intermingling 
of  distant  people  on  the  trains,  going  to  and  leaving  them, 
steadily  tends  to  knowledge  of  each  other,  sympathy  and  good 
understanding.  Railroad,  steamboat  and  telegraph  lines  now 
connect  all  countries  more  or  less  directly  with  each  other. 
In  some  countries  the  railroads  and  telegraphs  are  owned  by 
•the  governments,  while  in  others  they  are  the  property  of 
combinations  of  private  persons,  often  including  citizens  of 
several  countries.  War  interferes  with  their  normal  business 
operations,  and  usually  results  in* the  destruction  of  more  or 
less  of  the  property.  While  a  navy  may  be  employed  to  pro- 
tect a  merchant  marine  and  an  army  to  protect  a  railroad,  the 
commerce  of  the  world  has  outgrown  such  a  system  of  pro- 
tection. It  demands  the  protection  of  good  will.  Mutual 
interest  and  business  arrangements  between  those  connected 
with  and  using  any  line  of  transportation  are  usually  the  only 
protection  needed,  except  as  resort  to  the  courts  becomes 
necessary  at  times. 

Besides  the  transportation  companies  there  are  numberless 
trading,  manufacturing,  mining,  insurance,  benevolent  and 
religious  organizations  formed  in  one  country  and  operating 
in  another,  or  composed  of  citizens  of  both  that  bind  by  mu- 
tual interest  or  bring  alien  people  into  sympathy  by  personal 
contact.  It  is  not  so  much  through  the  propagation  of  par- 
ticular doctrines  as  by  the  establishment  of  common  interests 


986  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

and  personal  friendships  that  progress  is  made  toward  the 
recognition  of  universal  brotherhood.  Tornadoes,  floods  and 
famines  in  distant  lands  become  the  concern  of  good  people 
everywhere  and  aid  in  disaster  is  extended  merely  because 
the  sufferers  are  human.  Voluntary  private  insurance  com- 
panies undertaken  with  a  view  to  gaining  profits  by  the  col- 
lection of  premiums  in  excess  of  the  risks  incurred  now  have 
to  compete  with  mutual  companies  that  merely  distribute  the 
burdens  of  losses  among  the  policyholders  on  an  equitable 
basis. 

Manufacturing,  mining,  banking  and  trading  companies  in 
endless  variety,  ranging  in  size  all  the  way  from  a  few  co- 
workers with  little  capital  to  such  a  gigantic  combination  as 
the  United  States  Steel  Corporation  with  its  capitalization  of 
nearly  a  billion  and  a  half  and  its  great  army  of  employees 
have  been  organized  and  extend  their  operations  according  to 
their  means,  purposes  and  abilities  to  a  few  or  many  people, 
to  near  neighbors  only  or  to  the  most  remote  foreign  coun- 
tries. The  influence  of  the  large  combinations  tends  gener- 
ally to  the  promotion  of  good  understanding  and  friendly 
relations  between  distant  people.  The  evil  influences  incident 
to  them  arise  mainly  from  monopoly  or  attempted  monopoly, 
strife  with  competitors  and  oppression  of  dependents.  It  is 
through  combinations  of  such  kinds  that  most  modern  exotic 
fortunes  have  been  acquired,  often  by  more  or  less  immoral 
methods.  It  is  also  through  them  that  the  most  oppressive 
use  is  made  of  the  power  of  wealth.  The  lavish  expenditures 
of  some  multimillionaire  bond  and  stockholders  contrast  un- 
pleasantly with  the  penury  and  privation  of  some  of  the 
operatives.  But  the  fact  of  most  profound  significance  is  that 
these  are  combinations  to  produce  things  or  perform  services 
beneficial  to  mankind.  The  owners  and  managers  may  re- 
ceive far  too  great  rewards  for  the  services  they  render  and 
operatives  be  underpaid,  but  whatever  either  of  them  gets 
comes  as  a  result  of  useful,  not  harmful,  activities.  The 
gains  of  robbers  and  pirates  are  losses  to  others,  but  the 
gains  of  those  engaged  in  useful  activities  are.  not  necessarily 
the  losses  of  anybody,  and  ordinarily  are  attended  with  cor- 


GENERALIZATIONS  987 

responding  gains  to  those  with  whom  they  deal.  Viewed  as 
a  whole  in  their  relations  to  society  such  combinations  are 
moral  and  highly  beneficial.  They  lead  mankind  along  many 
peaceful  paths  to  rich  fields  where  great  harvests  are  gath- 
ered for  the  general  good.  The  policy  of  modern  enlightened 
nations  is  to  encourage  such  combinations.  Despotism  and 
theocracy  usually  fear  them,  but  free  people  need  only  to 
curb  and  eliminate  their  injustices.  These  arise,  i.  from  the 
corrupting  influence  exerted  on  the  governments ;  2.  from  the 
frauds  of  promoters  who  secure  stocks,  bonds  and  privileges 
without  just  compensation  through  relations  of  trust  and 
confidence;  3.  inordinate  profits  gained  through  monopoly; 
4.  inordinate  compensation  to  the  few  managers;  5.  inade- 
quate compensation  to  the  many  dependent  workers;  6.  dis- 
regard of  the  health  and  safety  of  employees ;  7.  disregard  of 
the  rights  of  the  general  public. 

The  representative  of  a  great  corporation,  like  the  ancient 
courtier,  diligently  cultivates  the  acquaintance  of  all  entrusted 
with  power  to  aid  or  injure  it,  fawns,  flatters  and  corrupts. 
Neither  executive,  legislative  or  judicial  oflicers  are  exempt 
from  his  attentions.  Unmerited  advantages  are  sought  and 
often  obtained  by  immoral  methods.  Corporate  franchises 
and  privileges  come  only  frofn  governmental  sources.  It  is 
necessary  that  lawful  purposes  and  needs  of  corporations  be 
made  known  to  all  the  governmental  agencies  that  deal  with 
them,  and  for  this  purpose  they  must  have  representation. 
There  is  little  danger  from  influences  exercised  openly.  The 
private  conferences  and  close  associations  for  undisclosed 
purposes  are  most  dangerous.  Corporate  abuses  are  all  sub- 
ject to  correction  by  the  sovereign  power. 

The  first  great  change  in  governmental  policy  with  refer- 
ence to  corporations  in  the  United  States  was  in  prohibiting^ 
special  charters  and  providing  for  their  organization  under 
general  laws.  Corporate  entity  may  now  be  obtained  as  a 
matter  of  right  instead  of  special  favor.  The  whole  field  is 
open  for  corporate  competition  and  secure  monopolies  can  no 
longer  be  obtained  through  special  charters.  Legislatures 
are  relieved  from  the  corrupting  influences  attending  appli- 


988  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

cations  for  them.  The  problem  of  establishing  justice  be- 
tween men  is  now  complicated  in  many  ways  and  simplitied  in 
others  by  corporate  organizations.  In  its  dealings  with  the 
outside  public  it  is  treated  as  a  unit  and  may  be  restrained  and 
regulated  as  may  be  found  necessary  for  the  general  welfare. 
Many  laws  have  been  passed  requiring  statements  at  intervals 
of  the  operations  and  financial  condition  of  various  classes 
of  corporations  to  be  used  as  a  basis  for  protection  against 
fraud,  the  abuse  of  corporate  powers  and  unreasonable 
exactions  by  public  service  corporations.  Important  govern- 
mental agencies  have  been  established  with  supervisory  pow- 
ers over  certain  classes  of  corporations.  In  the  United  States 
national  banks  are  supervised  by  the  Comptroller  of  the  Cur- 
rency and  state  banks  by  state  officers.  The  charges  and 
operations  of  carriers  engaged  in  interestate  commerce  are 
subject  to  substantial  control  by  the  Interstate  Commerce 
Commission,  and  intrastate  traffic  by  like  commissions  in 
many  of  the  states.  Insurance  companies  are  inspected,  their 
solvency  determined  and  charges  and  dealings  regulated  by 
commissioners  or  other  officers  with  like  powers  in  the  states. 
Recent  legislation  recognizes  and  enforces  the  duty  of  em- 
ployers to  provide  for  the  health  and  safety  of  their  em- 
ployees, and  bear  some  of  the  pecuniary  loss  resulting  to 
them  and  their  families  from  accidents  in  the  service.  Some 
corporations  make  provision  for  pensioning  their  superan- 
nuated servants. 

Great  combinations  force  on  us  more  full  and  careful  con- 
sideration of  the  relations  of  man  to  his  fellows.  The  duty 
to  care  for  the  welfare  of  others  is  being  more  and  more  per- 
ceived and  comprehended,  and  the  Deity  is  being  exonerated 
from  the  charge  of  visiting  poverty  and  suffering  on  the. 
multitude  and  wealth  and  satiety  on  the  few.  It  is  becorning 
apparent  that  the  poverty  and  suffering  with  which  the  world 
is  filled  are  avoidable  and  mainly  due  to  human  pride,  hatred, 
malice,  indolence,  waste,  ignorance  and  injustice,  not  to  divine 
wrath  or  caprice,  which  are  mythical  false  attributes  of  the 
Deity.  Many  potent  modern  influences  are  tending  to  the 
elimination  of  these  evils.     Governments  have  assumed  the 


GENERALIZATIONS  989 

function  of  educating  the  young,  and  now  expend  vast  sums 
to  remove  the  ignorance  and  creduhty  which  formerly  af- 
forded favorable  conditions  for  the  assertions  of  false  claims 
to  power  and  privilege.  It  is  found  that  the  strength  and 
efficiency  of  a  just  government  is  greatly  promoted  by  the 
general  diffusion  of  knowledge.  Though  wars  still  devastate 
parts  of  the  earth,  people  are  learning  the  inherent  vice  and 
immorality  of  them.  National  duels  are  seen  to  have  no  bet- 
ter basis  in  morals  than  private  duels,  which  the  laws  of  civi- 
lized countries  now  condemn.  Murders,  robberies  and  crimes 
of  all  kinds  are  still  committed,  but  it  is  now  becoming  ap- 
parent that  prevention  of  the  causes  of  crime  is  better  than 
punishment  of  criminals.  Many  organizations  have  recently 
been  formed  to  promote  the  judicial  settlement  of  interna- 
tional disputes  and  thereby  relieve  statesmen  from  any  ap- 
parent necessity  for  plunging  nations  into  wholesale  crime. 
Other  organizations  are  seeking  the  causes  of  crime  and  how 
it  may  be  avoided  and  eliminated.  All  these  deal  with  the 
complicated  relations  of  men  to  each  other  and  the  human 
combinations  which  impel  to  war  and  crime.  The  criminal  is 
no  longer  looked  on  as  a  monster  from  without  the  pale  of 
human  fellowship,  but  as  an  unfortunate  who  requires  help 
and  discipline  to  bring  him  to  observe  just  relations  with  his 
fellows.  A  fundamental  error  in  the  teachings  of  the  Code 
of.  Manu  lies  in  the  doctrine  that  moral  perfection  may  be 
gained  by  solitary  abstraction,  overlooking  the  impossibility 
of  severing  the  bonds  which  bind  man  to  man,  and  the  fact 
that  the  great  field  of  the  moral  law  is  the  field  of  human 
relations  one  with  others. 

The  good  and  evil  inhering  in  business  combinations  are 
similar  to  that  in  the  social  relations  of  private  persons. 
Mutual  help,  kindness  and  good  will  are  the  vivifying,  up- 
building and  uplifting  forces,  while  strife,  hatred  and  malice 
are  destructive  in  their  tendencies.  Competition  and  rivalry 
are  not  necessarily  harmful,  but  if  merely  manifestations  of 
effort  to  excel  are  highly  beneficial.  But  immorality  akin  to 
that  of  war  often  attends  the  use  of  the  power  of  strong 
corporations  as  well  as  that  of  strong  nations.     Men  holding 


990  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

a  majority  of  the  stock  sometimes  use  their  power  to  ruin 
the  holders  of  the  minority  of  it.  The  whole  force  of  the 
governing  body  of  the  corporation  may  be  used  to  oppress  em- 
ployees, to  ruin  competitors,  to  unjustly  favor  one  customer 
or  ruin  another,  or  to  wrong  all  with  whom  it  has  dealings. 
To  correct  these  evils  it  is  not  necessary  to  destroy  the  useful 
combination,  but  only  to  compel  the  men  who  direct  its  activi- 
ties to  desist  from  vicious  practices.  Moral  qualities  are 
primarily  personal  though  a  corporation  may  acquire  a  repu- 
tation for  moral  character  by  steady  adherence  through  all 
its  agencies  to  just  dealings,  but  if  it  follows  vicious  methods 
it  is  the  men  who  direct  its  affairs  who  are  guilty  and  should 
be  brought  to  account  rather  than  the  soulless  corporate 
entity.  A  fine  assessed  against  the  corporation  punishes  the 
innocent  equally  with  the  guilty  stockholder. 

Combination  tends  to  unity  of  purpose,  and  unity  of  the 
overruling  power  throughout  the  universe  is  the  most  sublime 
conception  of  which  the  human  mind  is  capable.  It  is  axio- 
matic that  this  unity  is  moral  and  that  all  natural  laws  are 
moral,  for  the  test  of  morality  is  accordance  with  the  law  of 
the  Supreme  Intelligence.  All  combinations,  all  governments 
and  all  human  laws  should  be  framed  and  used  to  induce  the 
people  to  know  and  obey  the  unchanging  principles  of  the 
moral  law.  The  infant  must  accept  the  instruction  and  obey 
the  commands  of  its  parents  because  they  have  superior 
knowledge  and  power.  The  parent  must  learn  and  obey  the 
public  law,  because  it  expresses  the  sovereign  will  and  is  sanc- 
tioned by  the  public  force.  Officers,  agents  and  employees  of 
a  great  corporation  must  study  and  obey  its  by-laws,  for  they 
express  the  corporate  will  and  are  enforced  by  it.  The  cor- 
poration itself  is  the  mere  creature  of  the  public  law,  and  its 
by-laws,  rules  and  regulations  are  valid  only  so  far  as  they 
accord  with  the  public  law.  But  the  public  law  reaches  no 
farther  than  the  national  boundary.  No  nation  can  legislate 
for  another,  or  for  the  great  broad  oceans.  The  rules  that 
have  been  evolved  and  enforced  are  local  and  temporary,  af- 
fecting a  limited  number  of  people  and  only  so  long  as  thev 
are  sanctioned  by  the  dominant  force.     International  law  is 


GENERALIZATIONS  991 

customary  law  based  on  the  more  or  less  generally  accepted 
customs  of  nations,  but  it  lacks  the  sanction  of  a  superior 
force  to  compel  observance  of  it.  In  the  autocratic  govern- 
ment the  ruler  is  accountable  to  no  earthly  power,  and  the 
limited  monarch  is  shorn  of  power  rather  than  subject  to 
discipline.  In  popular  governments  all  who  use  the  public 
force  are  accountable  for  their  conduct  to  the  people  for  whom 
they  are  authorized  to  act.  Progress  in  the  science  of  gov- 
ernment means  progress  in  enforcing  the  observance  of  law 
by  those  entrusted  with  authority  more  than  by  those  under 
them.  Progress  in  the  formulation  of  public  law  calls  for 
the  formulation  and  acceptance  of  just  rules  applicable  to 
nations  and  people  the  world  over,  superior  to  and  binding 
on  rulers  and  leaders  by  whatever  titles  they  may  be  called 
as  well  as  on  the  subjects  of  all  nations.  Restraint  of  the 
conduct  of  the  private  citizen,  though  sometimes  necessary,  is 
exceptional,  but  restraint  of  those  entrusted  with  great  power 
must  be  constantly  operative.  The  most  prevalent  error  in 
reasoning  on  the  needs  and  purposes  of  government  is  based 
on  the  assumption  that  the  great  multitude  of  the  poor  need 
constant  surveillance  and  repression.  The  greater  need  and 
greater  difficulty  everywhere  and  under  all  forms  of  govern- 
ment is  to  curb  the  dominant  elements,  restrain  their  rapacity 
and  amend  the  rules  they  have  caused  to  be  promulgated  as 
law  through  which  they  repeal  the  moral  law  of  mutuality  of 
service  and  give  to  the  crafty  drones  the  honey  gathered  by 
the  workers. 

The  mixture  of  good  and  evil  in  private  combinations  is 
similar  to  that  in  public  ones.  Charters,  by-laws  and  rules 
governing  the  apportionment  of  duties  and  the  distribution 
of  rewards  are  mainly  the  work  of  the  few  who  hold  positions 
of  advantage  and  profit  most  largely  by  them.  The  necessity 
for  such  rewards  for  intelligent  direction,  skill,  energy  and 
devotion  to  the  common  purpose  as  are  essential  to  efficiency 
is  not  to  be  overlooked :  nor  does  it  accord  with  either  sound 
morality  or  expediency  to  wholly  relieve  sloth,  inefficiency  and 
wastefulness  from  the  privations  and  hardships  nature  im- 
poses for  them.     All  governments  are  combinations  of  men, 


992  EVOLUTION  OF  GOVERNMENTS  AND  LAWS 

the  best  to  promote  the  general  welfare,  the  worst  to  gratify 
the  rulers.  All  laws  are  rules  of  conduct,  of  right  or  of 
privilege,  sanctioned  by  the  state  and  applicable  to  some  or 
all  its  people.  Of  these  also  the  best  promote  the  general 
welfare  and  the  worst  gratify  some  and  harm  the  rest.  The 
unnumbered  ages  of  isolated  development  of  diverse  systems 
are  past  and  the  time  for  comparison,  selection  of  the  good, 
elimination  of  the  bad  and  combined  effort  to  promote  the 
general  welfare  of  the  whole  human  race  has  arrived. 

The  primary  combination  made  necessary  by  the  Creator 
as  a  condition  to  the  perpetuation  of  the  human  race  is  the 
family.    Union  of  the  male  and  female  may  be  brief  and  im- 
perfect or  life  long  and  complete.     Children  may  have  the 
imperfect  care  of  a  mother  only  or  the  best  that  both  parents 
can  give.     The  love  between  the  pair  may  be  sensual  and 
selfish  or  pure  and  self-denying.     Every  grade  and  shade  of 
the  good  and  ill  in  human  life  finds  expression  in  the  family, 
and  the  happiness  of  its  members  is  measured  by  the  love 
for  and  devotion  to  each  other  manifested  by  all  the  mem- 
bers of  the  household.    The  principles  applicable  to  the  house- 
hold apply  to  every  combination  of  human  beings  from  the 
family  to  the  great  family  of  nations,  the  whole  human  fam- 
ily.   Love  for  all  humanity,  including  strangers  and  aliens  of 
all  races,  though  necessarily  ideal  and  abstract,  is  yet  the  very 
heart  and  life  of  all  that  is  good  in  religion  and  philosophy. 
The  perfect  conception  of  it  cannot  be  given  detailed  expres- 
sion in  human  laws,  because  it  is  too  ethereal  either  for  for- 
mulation in  words  or  enforcement  by  officials,  yet  it  is  a 
touchstone  by  which  all  forms  of  combination  and  all  rules 
of  conduct  may  be  tested.     Every  approach  to  it  conduces  to 
human  happiness,  every  departure  from  it  to  suffering.     Ab- 
solute perfection  of  conduct  and  relations  is  not  to  be  found 
in  any  household,  but  very  delightful  approximations  to  it 
give  perennial  comfort  and  much  unalloyed  happiness  to  the 
best  families  everywhere.     Constant  approximation  in  the  re- 
lations of  strangers  to  each  other  to  such  as  prevail  within 
the  families  is  foreshadowed  by  the  march  of  civilization. 
The  multiplication  and  extension  of  combinations  of  all  kinds. 


GENERALIZATIONS  993 

public  and  private,  furnish  a  physical  ba-sis  for  and  stimulate 
the  growth  of  nerves  of  sympathy  that  could  not  exist  be- 
tween people  isolated  from  each  other.  In  every  great  com- 
bination, public  or  private,  the  task  of  greatest  importance 
and  difficulty  is  to  rule  the  ruler,  judge  the  judge  and  lead 
the  leader.  Acts  classed  and  punished  as  crimes  are  each 
the  separate  work  of  one  person  or  a  few  confederates.  The 
importance  of  the  sum  total  of  them  is  magnified  by  the 
detailed  narratives  of  so  many  similar  atrocities.  Whole- 
sale crimes  perpetrated  in  the  conflicts  of  nations  and  by 
great  combinations  of  men  and  wholesale  injustice  corre- 
sponding to  great  numbers  of  continuing  crimes  are  charge- 
able to  the  men  who  administer  the  governments  or  direct  the 
combinations  or  to  the  laws. 


APPENDIX 

Code  of  Hammurabi  of  Babylon 

[The  following  extracts  are  taken  by  permission  from  the  excellent 
translation  of  Professor  Harper  published  by  the  University  of  Chicago 
Press.] 

The  code  of  Hammurabi,  engraved  on  a  block  of  black  diorite  in 
the  ancient  cuneiform  characters  of  the  Babylonians,  discovered  at 
Susa  by  a  French  expedition  under  the  direction  of  M.  De  Morgan  in 
1901-2  is  the  oldest  body  of  written  laws  known  to  us.  It  is  assigned 
to  about  2250  B.C.  Hammurabi  was  a  military  despot  claiming  to 
rule  by  authority  of  the  gods  Anu,  Bel  and  Morduk.  In  the  preface 
to  his  code,  while  he  bases  his  authority  on  the  will  of  the  gods,  he 
claims  full  credit  and  assumes  full  responsibility  for  all  his  works. 
He  does  not  claim  merely  to  be  the  instrument  for  the  transmission 
of  laws  framed  by  a  god,  but  promulgates  the  code  as  his  own  work, 
written  in  282  sections.  The  despotic  spirit  in  which  it  was  framed  is 
well  indicated  by  the  first  section,  which  provides  that,  if  a  man  charge 
another  with  a  capital  crime  and  cannot  prove  it,  the  accuser  shall 
be  put  to  death. 

The  second  section  exhibits  the  superstitions  prevailing.  One  charged 
with  sorcery  must  jump  into  the  river  and,  if  drowned  his  accuser 
might  take  his  house;  but  if  he  came  out  unharmed  his  accuser  should 
be  put  to  death  and  the  accused  take  his  house.  To  bear  false  witness 
in  a  capital  case  was  a  capital  crime,  and  in  other  cases  subjected  the 
guilty  party  to  a  penalty  equal  to  that  imposed  for  the  offense  charged. 

Sec.  5.  "If  a  judge  pronounce  a  judgment,  render  a  decision,  deliver 
a  verdict  duly  signed  and  sealed  and  afterward  alter  his  judgment,  they 
shall  call  that  judge  to  account  for  the  alteration  of  the  judgment 
which  he  had  pronounced,  and  he  shall  pay  twelve-fold  the  penalty 
which  was  in  said  judgment;  and,  in  the  assembly,  they  shall  expel 
him  from  his  seat  of  judgment,  and  he  shall  not  return,  and  with  the 
judges  in  a  case  he  shall  not  take  his  seat." 

The  death  penalty  was  imposed  for  stealing  the  property  of  a  temple 
or  palace  or  receiving  it  from  the  thief;  for  purchasing  slaves  or 
other  personal  property  from  the  son  or  servant  of  the  owner  without 
witnesses  or  contracts.  A  theft  of  an  ox,  sheep,  ass,  pig  or  boat,  from 
a  temple  or  palace  might  be  commuted  by  payment  of  thirty  fold;  if 
from  a  freeman  of  tenfold,  but  if  the  thief  was  unable  to  pay  he  was 
liable  to  be  put  to  death. 

994 


CODE  OF   HAMMURABI  995 

Sections  9  to  13  relate  to  claims  for  lost  property  and  require  a  trial 
before  the  judges  by  the  testimony  of  witnesses.  The  lost  property 
was  restored  to  the  owner,  the  seller  of  it  to  the  one  found  in  possession 
was  put  to  death  as  a  thief,  and  the  purchaser  was  repaid  his  purchase 
money  from  his  estate.  If  the  possessor  failed  to  prove  a  purchase 
from  another,  he  was  put  to  death  as  a  thief.  If  the  claimant  failed 
to  prove  title  and  identity  of  his  property,  he  was  put  to  death  as  a 
calumniator. 

Death  was  also  inflicted  for  stealing  a  minor  son  of  another,  aiding 
a  slave  to  escape  from  the  city  gate,  harboring  an  escaped  slave  and 
refusing  to  produce  him,  making  a  breach  in  a  house,  practicing  brig- 
andage, taking  furniture  from  a  burning  house;  on  an  officer  sent 
on  an  errand  of  the  king  for  hiring  a  substitute  to  go  in  his  stead;  on  a 
governor  for  taking  the  property  of  an  officer,  letting  an  office  for 
hire,  presenting  an  officer  in  judgment  to  a  man  of  influence  or  taking 
the  kings  gift  from  an  officer,  and  on  any  man  for  dereiving  a  brander 
and  causing  him  to  brand  a  slave  with  the  sign  that  he  could  not  be 
sold,  or  for  building  a  house  so  that  it  collapsed  and  caused  the  death 
of  the  owner. 

To  one  seizing  a  fugitive  slave  and  returning  him  to  the  owner  the 
latter  was  required  to  pay  two  shekels  of  silver. 

For  robbery  or  murder  by  a  brigand  who  escaped,  the  city  and  gov- 
ernor of  the  province  where  it  was  committed  were  required  to  pay 
the  amount  of  the  loss,  itemized  and  sworn  to  by  the  loser,  and  a 
mana  of  silver  to  the  heirs  of  the  person  killed. 

If  an  officer  in  a  garrison  of  the  king  was  captured  his  field  and 
garden  were  given  to  his  son,  if  able  to  conduct  the  business,  if  too 
young  one-third  was  given  to  the  mother  who  was  required  to  rear  him, 
if  given  to  a  stranger  and  the  officer  returned,  they  were  to  be  restored 
to  him.  If  the  officer  from  the  beginning  neglected  his  field,  garden 
and  house,  and  another  took  and  conducted  the  business  for  three 
years,  his  right  to  continue  to  do  so  was  established,  but  by  one 
years  neglect  the  right  was  not  forfeited.  If  a  merchant  ransomed 
a  captured  officer,  the  officer  was  required  to  pay  the  ransom,  if  he 
had  sufficient  in  his  house,  if  not  it  should  be  paid  from  the  temple  of 
his  city,  and  if  there  was  not  enough  in  the  temple  the  palace  should 
pay  it.     His  field,  garden  or  house  could  not  be  taken  for  his  ransom. 

Sec.  37.  "If  a  man  purchase  the  field,  garden  or  house  of  an  officer, 
constable  or  tax-gatherer,  his  deed  tablet  shall  be  broken  (canceled) 
and  he  shall  forfeit  his  money  and  he  shall  return  the  field,  garden 
or  house  to  its  owner."  The  officer  was  also  forbidden  to  deed  these 
to  his  wife  or  assign  them  for  debt,  that  is  such  as  he  held  by  virtue 
of  his  office,  but  lands  bought  from  others  he  might  assign  for  debt. 
Sec.    40.    "A    woman,    merchant    or    other    property-holder    may    sell 


996  .\PPENDIX 

field,    garden    or    house.      The   purchaser    shall    conduct   the   business  of 
the  field,  garden  or  house  which  he  has  purchased." 

If  a  man  rented  a  field  and  failed  to  raise  a  crop  he  must  pay  on 
the  basis  of  adjacent  fields  and  must  break  up  the  soil  with  hoes,  harrow 
and  return  it  to  the  owner.  If  he  rented  an  unreclaimed  field  for  three 
years  and  neglected  it,  the  fourth  year  he  must  break  it  up  and  pay  a 
prescribed  rent  in  grain.  Where  crop  rent  was  paid  and  afterward  a 
flood  carried  away  the  remainder,  it  was  the  tenants  loss,  but  if  the 
loss  occurred  before  payment,  the  remainder  was  divided  in  the  agreed 
proportion.  A  tenant  might  assign  his  lease  without  consent  of  the 
landlord.  Loss  of  his  crop  by  flood  or  drouth  entitled  a  debtor  to  an 
extension  of  time  for  a  year  and  an  abatement  of  a  years  interest. 
The  use  of  land  might  be  given  as  security  for  a  loan  and  the  land 
tilled  by  the  lender,  or  a  growing  crop  might  be  pledged.  In  either  case 
the  creditor  took  only  his  loan  and  interest. 

Sec.  53.  "If  a  man  neglect  to  strengthen  his  dyke  and  do  not 
strengthen  it,  and  a  break  be  made  in  his  dyke  and  the  water  carry 
away  the  farm-land,  the  man  in  whose  dyke  the  break  has  been  made 
shall    restore   the   grain    which    he    has    damaged." 

Sec.  54.  "If  he  be  not  able  to  restore  the  grain,  they  shall  sell  him- 
arid  his  goods,  and  the  farmers  whose  grain  the  water  has  carried  away 
shall  share    (the  results  of  the  sale.)" 

Sec.  55.  "If  a  man  open  his  canal  for  irrigation  and  neglect  it  and 
the  water  carry  away  an  adjacent  field,  he  shall  measure  out  grain  on  the 
basis  of  the  adjacent  fields." 

If  a  shepherd  pastured  his  sheep  in  the  field  of  another  without 
agreement,  he  must  pay  two  Gur  of  grain  per  Gan  of  land,  and  if  he 
turned  them  in  against  the  will  of  the  owner,  he  must  pay  six  Gur  per 
Gan.  For  cutting  down  a  tree  in  another's  orchard  one  must  pay  half 
a  mana  of  silver.  If  a  field  was  let,  to-  a  gardener  for  an  orchard,  the 
fifth  year  the  gardener  and  owner  shared  equally  of  the  fruit. 

Sec.  61.  "If  the  gardener  do  not  plant  the  whole  field,  but  leave  at 
space  waste,  they  shall  assign  the  waste  space  to  his  portion." 

If  the  tenant  failed  to  plant  the  orchard  but  raised  grain,  he  must 
pay  rent.  Where  an  orchard  was  given  to  a  gardener  to  manage,  the 
owner  took  two-thirds  and  the  gardener  one-third  of  the  fruit.  Where 
a  tenant  or  a  gardener  neglected  his  work,  he  must  pay  rent  on  the 
basis  of  adjacent  fields  or  orchards.  Sections  66  to  99  inclusive  are- 
missing,  having  been  cut  off  the  stone  at  some  unknown  time  prior  to- 
its  recent  discovery.  Sections  relating  to  dealings  between  merchants 
and  their  agents  follow  the  missing  portion. 

Sec.  103.  "If,  when  he  goes  on  a  journey,  an  enemy  rob  him  of 
whatever  he  was  carrying,  the  agent  shall  take  an  oath  in  the  name- 
of  god  and  go  free." 

Sec.  104.  "If  a  merchant  give  to  an  agent  grain,  wool,  oil  or  goods 
of  any  kind  with  which  to  trade,  the  agent  shall  write  down  the  value 


CODE   OF   HAMMURABI  997 

and  return  (the  money)  to  the  merchant.  The  agent  shall  take  a 
sealed  receipt  for  the  money  which  he  gives  to  the  merchant." 

Sec.  105.  "If  the  agent  be  careless  and  do  not  take  a  receipt  for  the 
money  which  he  has  given  to  the  merchant,  the  money  not  receipted 
for  shall  not  be  placed  to  his  account." 

Sec.  108.  "If  a  wine-seller  do  not  receive  grain  as  the  price  of  drink, 
but  if  she  receive  money  by  the  great  stone,  or  make  the  measure  for 
drink  smaller  than  the  measure  for  corn,  they  shall  call  that  wine- 
seller  to  account,  and  they  shall  throw  her  into  the  water." 

Sec.  109.  "If  outlaws  collect  in  the  house  of  a  wine-seller,  and  she 
do  not  arrest  these  outlaws  and  bring  them  to  the  palace,  that  wine-seller 
shall  be  put  to   death." 

Sec.  no.  '*If  a  priestess  who  is  not  living  in  a  MAL.  GE.  A.,  open  a 
wine-shop  or  enter  a  wine-shop  for  a  drink,  they  shall  burn  that  woman." 

If  a  carrier  of  goods  failed  to  deliver  them,  he  was  liable  to  pay 
five-fold  for  them.  A  creditor,  who  seized  the  grain  of  his  debtor  without 
his  consent,  must  return  it  iand  lose  his  debt.  If  one  seized  another 
for  a  debt  he  did  not  owe,  he  was  required  to  pay  one-third  mana  of 
silver.  If  the  creditor  seized  his  debtor  and  he  died  in  his  house, 
there    was    no   penalty. 

Sec.  116.  "If  the  one  seized  die  of  abuse  or  neglect  in  the  house 
of  him  who  seized  him,  the  owner  of  the  one  seized  shall  call  the 
merchant  to  account;  and  if  it  be  a  man's  son  (that  he  seized)  they 
shall  put  his  son  to  death;  if  it  be  a  man's  servant  (that  he  seized) 
he  shall  pay  one-third  mafia  of  silver  and  he  shall  forfeit  whatever 
amount   he   had   lent." 

Sec.  117.  "If  a  man  be  in  debt  and  sell  his  wife,  son  or  daug^hter, 
or  bind  them  over  to  service,  for  three  years  they  shall  work  in  the 
house  of  their  purchaser  or  master;  in  the  fourth  year  they  shall  be 
given    their    freedom." 

Sec.  118.  "If  he  bind  over  to  service  a  male  or  female  slave,  and 
if  the  merchant  transfer  or  sell  such  slave,  there  is  no  cause  for 
complaint." 

Sec.  119.  "If  a  man  be  in  debt  and  he  sell  his  maid  servant  who  has 
borne  him  children,  the  owner  of  the  maid  servant  (i.e.  the  man  in 
debt)  shall  repay  the  money  which  the  merchant  paid  (him),  and  he 
shall   ransom    his   maid   servant." 

The  storage  of  grain  and  property  for  others  was  regulated  and 
return  to  the  owner  enforced  with  penalties  for  withholding  it.  If 
the  deposit  was  stolen  the  bailee  must  make  good  the  loss. 

Sec.  127.  "If  a  man  point  the  finger  at  a  priestess  of  the  wife  of 
another  and  cannot  justify  it,  they  shall  drag  that  man  before  the  judges 
and  they  shall  brand  his  forehead." 

Sec.  128.  "If  a  man  take  a  wife  and  do  not  arrange  with  her  the 
(proper)   contracts,  that  woman  is  not  a   (legal)   wife." 


998  APPENDIX 

Sec,  129.  "If  the  wife  of  a  man  be  taken  in  lying  with  another  man, 
they  shall  bind  them  and  throw  them  into  the  water.  If  the  husband 
of  the  woman  would  save  his  wife,  or  if  the  king  would  save  his  male 
servant  (-he  may)." 

Sec.  130,  "If  a  man  force  the  (bethrothed)  wife  of  another,  who  has 
not  known  a  male  and  is  living  in  her  father's  house,  and  he  lie  in  her 
bosom  and  they  take  him,  that  man  shall  be  put  to  death  and  that 
Woman   shall   go    free." 

Sec.  131.  "If  a  man  accuse  his  wife  and  she  has  not  been  taken 
in  lying  with  another  man,  she  shall  take  an  oath  in  the  name  of  God 
and  she  shall  return  to  her  house." 

Sec.  132.  "If  the  finger  has  been  pointed  at  the  wife  of  a  man,  and 
she  has  not  been  taken  in  lying  with  another  man,  for  her  husband's 
sake   she    shall   throw   herself    into   the    river." 

If  a  man  was  captured  his  wife  must  remain  in  his  house  if  there 
were  provisions,  and  if  she  went  to  another's  house  she  must  be  thrown 
into  the  water,  but  if  there  were  no  provisions  she  might  go  to  another's 
liouse,  and  if  she  bore  children  there  and  her  husband  returned  she 
should  go  to  him  and  the  children  remain  with  their  father.  If  a  man 
deserted  his  city  his  wife  might  go  to  another  house  and  was  not 
required  to  return  to  him  in  case  he  came  back.  If  a  man  put  away 
a  wife  or  concubine  who  had  borne  him  children,  he  must  return  her 
'dowry  and  give  her  the  income  of  field,  garden  and  goods  to  bring 
up  her  children,  and,  when  they  were  grown,  she  might  take  a  son's 
;part  and  marry  the  man  of  her  choice.  If  a  wife  had  not  borne  children, 
the  husband  might  put  her  away,  but  must  give  her  her  marriage  settlement 
and  the  portion  she  (brought  from  her  father's  house  and,  if  there  were 
none,  pay  her  one  mana  of  silver  for  a  divorce. 

Sec.  141.  "If  the  wife  of  a  man,  who  is  living  in  his  house,  set  her 
face  to  go  out  and  play  the  part  of  a  fool,  neglect  her  house,  belittle 
her  husband,  they  shall  call  her  to  account;  if  her  husband  say  "I  have 
put  her  away,"  he  shall  let  her  go.  On  her  departure  nothing  shall  be 
given  to  her  for  divorce.  If  her  husband  say,  "I  have  not  put  her  away," 
her  husband  may  take  another  woman.  The  first  woman  shall  dwell 
in  the  house  of  her  husband  as  a  maid  servant." 

Sec.  142.  "If  a  woman  hate  her  husband  and  say:"  Thou  shalt  not 
have  me,  "they  shall  inquire  into  her  antecedents  for  her  defects;  and 
if  she  has  been  a  careful  mistress  and  be  without  reproach  and  her 
husband  have  been  going  about  and  greatly  belittling  her,  that  woman 
has  no  blame.    She  shall  receive  her  dowry  and  go  to  her  father's  house." 

Sec.  143.  "If  she  have  not  been  a  careful  mistress,  have  gadded 
about,  have  neglected  her  house  and  have  belittled  her  husband,  they 
shall    throw    her    into    the    water." 

If  a  man's  wife  gave  him  a  maid  servant  who  bore  him  children, 
he  could  not  then  take  a  concubine.     If  he  had   a   wife   who   presented 


CODE  OF  HAMMURABI  999 

him  no  children  he  might  take  a  concubine,  but  she  did  not  rank  as  a 
wife.  A  maid  servant,  who  had  borne  children  to  her  master,  could 
not  take  rank  with  her  mistress,  but  the  mistress  could  not  sell  her. 
She  might  be  sold  if  she  had  not  borne  children.  If  the  wife  became 
diseased,  the  husband  might  take  another  but  could  not  put  the  first 
away.  He  must  maintain  her,  but  if  she  chose  to  go  she  might  and 
take    her    dowry. 

Sec.  150.  "If  a  man  give  to  his  wife  field,  garden,  house  or  goods, 
and  he  deliver  to  her  a, sealed  deed,  after  (the  death  of)  her  husband, 
her  children  cannot  make  claim  against  her.  The  mother  after  her 
(death)  may  will  to  her  child  whom  she  loves,  but  to  a  brother  she 
may    not." 

If  a  husband  contracted  with  a  wife  that  she  should  not  be  holden 
for  his  debts,  creditors  could  not  hold  her  for  his  debts,  nor  her 
creditors  hold  her  husband  for  hers. 

Sec.  153.  "If  a  woman  bring  about  the  death  of  her  husband  for 
the  sake  of  another  man,  they  shall  impale  her." 

Incest  was  punished  with  drowning,  burning  or  a  fine,  according  t6 
the  relation  of  the  parties.  If  a  man  refused  to  consummate  a  marriage 
he  had  contracted,  he  forfeited  the  presents  he  had  made,  and,  if 
after  making  a  marriage  settlement  the  bride's  father  refused  to  permit 
the  marriage,   he   forfeited  double   the  amount  of  the   presents. 

On  the  death  of  the  wife  her  dowry  belonged  to  her  children,  but 
if  she  had  no  children  it  went  to  her  father's  house,  if  he  returned 
to  the  husband  the  marriage  settlement. 

Sec.  165.  "If  a  man  present  field,  garden  or  house  to  his  favorite 
son  and  write  for  him  a  sealed  deed;  after  the  father  dies  when  the 
brothers  divide,  he  shall  take  the  present  which  the  father  gave  him, 
and  over  and  above  they  shall  divide  the  goods  of  the  father's  house 
equally." 

Sec.  166.  "If  a  man  take  wives  for  his  sons  and  do  not  take  a  wife 
for  his  youngest  son,  after  the  father  dies,  when  the  brothers  divide, 
they  shall  give  from  the  goods  of  the  father's  house  to  their  youngest 
brother,  who  has  not  taken  a  wife,  money  for  a  marriage  settlement 
in  addition   to  his  portion  and  they  shall  enable  him  to  take  a  wife." 

If  a  man's  first  wife  died  and  he  married  a  second  and  had  children  by 
both,  the  children  took  the  dowries  of  their  respective  mothers  and 
divided  the  goods  of  the  father  equally. 

A  father  could  not  disinherit  his  son  without  cause  nor  for  the  first 
offense,  but  for  a  second  grave  crime  he  might  do  so.  If  a  man  having 
children  by  both  his  wife  and  maid  servant  called  the  children  of  the 
latter  "My  children,"'  on  his  death  they  inherited  equally  with  the 
children  of  the  wife,  otherwise  they  did  not  inherit,  but  the  maid  servant 
and  her  children  were  free.  The  widow  took  the  dowry,  the  gifts  made 
her  by  her  husband  and  the  use  of  his  house  for  life.     If  the  husband 


1000  APPENDIX 

made  her  no  gift  she  took  her  dowry  and  a  portion  of  his  goods  equal 
to  that  of  a  son.  If  she  chose  to  remarry,  she  took  her  dowry  only, 
leaving  the  rest  to  the  children.  If  she  then  had  more  children  and 
died,  her  dowry  was  divided  among  all  her  children,  if  she  bore  no 
more   her   children   by   the   first   husband   took   the   dowry. 

If  a  slave  married  a  free  woman  the  children  were  free,  and  what- 
ever they  acquired  after  marriage  was  divided  on  the  sl'ave's  death, 
one-half  to  the  master  and  the  other  to  the  woman  for  her  children. 
A  widow  with  minor  children  could  not  remarry  without  consent  of  the 
judges,  and,  in  case  she  was  allowed  to  marry  again,  the  judges  re- 
quired husband  and  wife  to  administer  and  preserve  the  estate  and 
rear  the  minors.  Where  a  father  gave  to  a  daughter,  who  was  a 
priestess  or  devotee,  a  deed  of  gift,  it  was  for  life  only,  unless  the 
power  to  give  it  away  after  death  was  conferred  by  the  deed.  She 
took  the  income   for  life  and  on  her   death   it  went  to   her   brothers. 

If  the  father  did  not  give  a  dowry  to  his  daughter,  who  was  a  bride 
or  devotee,  she  took  a  share  of  his  goods  equal  to  that  of  a  son,  which 
on'  her  death  passed  to  her  brothers,  except  a  Nu  Par  or  priestess  of 
Marduk,  who  took  only  one-third  a  son's  portion  of  his  goods,  but  a 
priestess  of  Marduk  at  her  death  might  give  to  whomsoever  she  pleased. 

If  a  father  gave  his  daughter  a  dowry  she  did  not  share  in  his 
goods,  but  if  he  failed  to  do  so  she  was  entitled  to  a  dowry  after  his 
death   proportionate   to   his   estate. 

Sec.  185.  "If  a  man  take  in  his  name  a  young  child  as  a  son  and 
rear  -him,   one   may   not  bring  claim   for   that   adopted   son." 

If  the  adopted  son  was  rebellious  he  might  be  returned  to  his  father. 

Sec.  188.  "If  an  artisan  take  a  son  for  adoption  and  teach  him  his 
handicraft,*  one  may  not  bring  claim  for  him." 

Sec.  189.  "If  he  do  not  teach  him  his  handicraft,  that  adopted  son 
may  return  to  his  father's  house'" 

Sec.  191.  "If  a  man  who  has  taken  a  young  child  as  a  son  and 
reared  him,  establish  his  own  house  and  acquire  children,  and  set 
his  face  to  cut  off  the  adopted  son,  that  son  shall  not  go  his  way. 
The  (father  who  reared  him  shall  give  to  him  of  his  goods  one-third 
the  portion  of  a  son  and  he  shall  go.  He  shall  not  give  to  him  of 
field,    garden    or    house." 

Sec.  192.  "If  the  son  of  a  NER.SE.GA,  or  the  son  of  a  devotee, 
say  to  .his  father  who  has  reared  him,  or  his  mother  who  has  reared 
him:  "My  father  thou  art  not,"  "My  mother  thou  are  not,"  they  shall 
cut  out  his  tongue." 

Sec.  193.  "If  the  son  of  a  NER.SE.GA.  or  the  son  of  a  devotee 
identify  his  own  father's  house  and  hate  the  father  who  has  reared 
him  and  the  mother  who  has  reared  him,  and  go  back  to  his  father's 
house,  they  shall  pluck  out  his  eye." 

Sec.  194.    "If   a   man   give  his   son   to   a   nurse   and   that   son   die   in 


CODE  OF  Hx\MMURABI  looi 

the  hands  of  the  nurse,  and  the  nurse  substitute  another  son  without 
the  consent  of  his  father  or  mother,  they  shall  call  her  to  account, 
and  because  she  has  substituted  another  son  without  the  cqnsent  of 
his  father  or  mother,  they  shall  cut  off  her  breast." 

Sec.   195.     "If  a  son  strike  his  father  they  shall  cut  off  his  fingers." 

Sec.  196.  "If  a  man  destroy  the  eye  of  another  man,  they  shall  destroy 
his  eye." 

Sec.    197.     "If   one   break  a  man's   bone,   they   shall   break   his  bone." 

Sec.  200,  "If  a  man  knock  out  a  tooth  of  a  man  of  his  own  rank, 
they  shall  knock  out  his  tooth." 

For  other  kinds  of  assaults  precuniary  mulcts  were  imposed:  for 
striking  a  superior  sixty  strokes  with  an  ox-tail  whip,  for  striking  a 
man's  son  a  slave  was  liable  to  have  his  ear  cut  off,  for  a  blow  in  a 
quarrel  the  aggressor  was  required  to  pay  the  doctor  and  if  death  ensued 
half  a  mana  of  silver. 

Sec.  209.  "If  a  man  strike  a  man's  daughter  and  bring  about  a 
miscarriage,  he  shall  pay  ten  shekels  of  silver  for  her  miscarriage." 

Sec.  210.    "If  that  woman  die  they  shall  put  his  daughter  to  death." 

The  people  were  divided  into  three  ranks,  styled  in  this  translation 
as  men,  freeman  and  slaves,  and  pecuniary  mulcts  for  assaults  and 
offenses  to  the  person  were  graded  accordingly.  For  operating  for 
a  wound  and  saving  a  man's  life  or  opening  an  abcess  and  saving  his 
eye  a  physician  was  entitled  to  teti  shekels  of  silver,  for  a  freeman  five, 
and  for  a  slave  two.  If  by  operation  he  caused  a  man's  death  or  the 
loss  of  his  eye,  his  fingers  were  to  be  cut  off,  if  the  death  of  a  slave 
he  must  restore  a  slave  of  equal  value.  For  setting  a  broken  bone  or 
curing  diseased  bowels  the  physician  was  entitled  to  five  shekels  of 
silver  for  a  man,  three  for  a  freeman,  and  two  for  a  slave.  A  veterinary 
surgeon  for  saving  the  life  of  an  ox  or  an  ass  was  allowed  one-sixth 
of  a  shekel  and  if  he  caused  its  death  was  required  to  pay  one-fourth 
its    value. 

Sec.  226.  "If  a  brander  without  the  consent  of  the  owner  of  the 
slave,  brand  a  slave  with  the  sign  that  he  cannot  be  sold,  they  shall 
cut  off  the  fingers  of  that  brander." 

The  compensation  of  house  builders  was  regulated  according  to  the 
size  of  the  house. 

Sec.  230.  "If  it  cause  the  death  of  the  son  of  the  owner  of  the 
house,  they  shall  put  to  death  a  son  of  that  builder." 

Sec.  231.  "If  it  cause  the  death  of  a  slave  of  the  owner  of  the 
house,  he  shall  give  to  the  owner  of  the  house  a  slave  of  equal  value. 

He   must   also    restore   the   property    destroyed. 

The  wages  of  boat  builders  were  similarly  regulated  and  they  were 
bound  to  make  the  boat  seaworthy.  A  boatman  entrusted'  with  a 
cargo  was  liable  for  a  loss  caused  by  his  negligence,  and  also  for  sinking 
another  boat.     The  hire  of  oxen  and  asses  was  regulated  and  the  hirer 


1002  APPENDaX 

was  liable  to  the  owner  for  death  or  injury  to  the  animal  resulting 
from   his   neglect   or   abuse. 

Sec.  250.  "If  a  bull  when  passing  through  the  street,  gore  a  man 
and  bring  about  his  death,  this  case  has  no  penalty." 

Sec.  251.  "If  a  man's  bull  have  been  wont  to  gore  and  they  have  made 
known  to  him  his  habit  of  goring,  and  he  have  not  protected  his  horns 
or  have  not  tied  him  up,  and  that  bull  gore  the  son  of  a  man  and 
bring  about  his  death,  he  shall  pay  one-half  mana  of  silver." 

If  a  hired  overseer  of  a  farm  stole  seed  or  crops,  his  fingers  were 
to  be  cut  off  and  he  was  liable  to  pay  damages  for  his  neglect.  The 
wages  of  boatmen,  field  laborers,  herdsmen,  artisans,  brickmakers,  tailors, 
carpenters,  masons  and  other  hired  men  were  regulated  by  the  code, 
and  they  were  liable  to  pay  for  losses  due  to  their  negligence. 

Sec.  282.  "If  a  male  slave  say  to  his  master:  "Thou  are  not  my 
master,"  his  master  shall  prove  him  to  be  his  slave  and  shall  cut  off 
his    ear." 

The  character  of  this  code  accords  with  the  despotic  powers  of  its 
author.  Its  penalties  are  cruel  and  in  some  cases  unjust  to  the  last 
degree.  The  execution  of  a  son  or  daughter  for  a  crime  of  the  father 
against  the  son  or  daughter  of  another  is  shockingly  barbarous.  Maim- 
ing as  a  punishment  is  both  cruel  and  impolitic,  as  it  reduces  the  use- 
fulness of  the  culprit  and  tends  to  make  him  a  confirmed  criminal.  It 
will  be  noticed  that  this  code  deals  with  the  rights  and  duties  of  the 
subjects  and  is  designed  to  punish  crime,  enforce  the  performance  of 
contracts  and  obligations,  regulate  marriages,  divorces,  the  inheritance 
of  property  and  the  wages  of  laborers.  Although  it  mentions  the  temple 
and  palace  it  does  not  purport  to  regulate  either  the  religious  establishment 
or  the   system  of  taxation. 

LAWS  OF  THE  XII  TABLES  OF  ROME 

The  following  summary  of  the  Laws  of  the  XII  Tables  is  made 
from  the  fragments  put  together  by  Mm.  Carton  and  Rouille  and  pub- 
lished in  the  Appendix  to  Cooper's  Justinian.  These  fragments  show 
that  Table  I  deals  with  procedure  and  from  it  we  quote: 

"I.     Go  immediately  with  the  person  who  cites  you  before  the  judge, 

II.  If  the  person  you  cite  refuses  to  go  with  you  before  the  judge 
take  some  that  are  present  to  be  witnesses  of  it  and  you  shall  have  a 
right  to  compel  him  to  appear. 

III.  If  the  person  cited  endeavors  to  escape  from  you  or  puts  himself 
into   a  posture   of   resistance  you   may   seize   his   body. 

IV.  If  the  person  prosecuted  be  old  or  infirm  let  him  be  carried  in  a 
jumentum  or  open  carriage.  But  if  he  refuse  that,  the  prosecutor  shall 
not  be  obliged  to  provide  him  an  Arcera  or  covered   carriage. 

V.  But  if  the  person  cited  find  a  surety  let  him  go. 


TWELVE  TABLES  OF  ROME  1003 

VL  Only  a  rich  man  shall  be  a  surety  for  a  rich  man.  But  any 
security  shall  be   sufficient  for  a  poor  man. 

VIL  The  judge  shall  give  judgment  according  to  the  agreement  made 
between  the  parties  by  the  way. 

Vin.  If  the  person  cited  has  made  no  agreement  with  his  adversary, 
let  the  praetor  hear  the  cause  from  sunrise  till  noon ;  and  let  both 
parties  be  present  when  it  is  heard,  whether  it  be  in  the  Forum  or  Comitium. 

IX.  Let  the  same  praetor  give  judgment  in  the  afternoon,  though  but 
one  of  the  parties  be  present. 

X.  Let  no  judgment  be  given  after  the  going  down  of  the  sun. 
XL    (Provides  for  arbitration  by  consent). 

XII.  Whoever  shall  not  be  able  to  bring  any  witnesses  to  prove  his 
pretensions  before  the  judge  may  go  and  make  a  clamour  for  three 
days  together  before  his  adversary's  house. 

The  second  table  deals  with  robberies  and  offenses  against  property, 
and  allows  the  killing  of  a  robber  who  attacks  in  the  night  or  with 
arms  in  the  day  time.  A  robber  taken  in  the  fact  is  to  be  beaten  with 
rods  and  be  the  slave  of  the  person  robbed.  If  a  slave  commits  a 
robbery  he  is  to  be  beaten  and  thrown  headlong  from  the  capitol.  For 
less  aggravated  offenses  the  judge  might  require  payment  to  the  in- 
jured party  of  double  damages,  and  in  all  cases  the  parties  concerned 
were  permitted  to  settle  the  matter. 

VII.  "If  one  comes  privately,  by  night  and  treads  down  another 
man's  field  of  corn  or  reaps  his  harvest,  let  him  be  hanged  up  and  put 
to  death  as  a  victim  devoted  to  Ceres"  (but  if  a  child  the  Praetor 
ordered  him  corrected). 

Table  III  deals  with  debtor  and  creditor. 

I.  Let  him  who  takes  more  than  one  per  cent  interest  for  money  be 
condemned  to  pay  four  times  the  sum  lent. 

II.  When  any  person  acknowledges  a  debt  or  is  condemned  to  pay  it, 
the  creditor  shall  give  his  debtor  thirty  days  for  the  payment  of  it, 
after  which  he  shall  cause  him  to  be  seized  and  brought  before  a  judge. 

III.  If  the  debtor  refuse  to  pay  his  debt  and  can  find  no  security 
his  creditor  may  carry  him  home,  and  either  tie  him  by  the  neck  of 
put  irons  upon  his  feet,  provided  the  chain  does  not  weigh  above  fifteen 
pounds,  but  it  may  be  lighter  if  he  pleases. 

IV.  If  the  captive  debtor  will  live  at  his  own  expense  let  him,  if 
not  let  him  who  keeps  him  in  chains  allow  him  a  pound  of  meal  a  day 
or    more    if    he    pleases. 

V.  The  creditor  may  keep  his  debtor  prisoner  for  sixty  days.  If  in 
this  time  the  debtor  does  not  find  means  to  pay  him,  he  that  detains 
him  shall  bring  him  out  before  the  people  three  market  days  and  proclaim 
the  sum  of  which  he  has  been  defrauded. 

VI.  If  the  debtor  be  insolvent  to  several  creditors,  let  his  body  be  cut 


I004  APPENDIX.    . 

in  pieces  on  the  third  market  day.  It  may  be  cut  into  more  or  fewer 
pieces  with  impunity.  Or  if  his  creditors  consent  to  it,  let  him  be  sold 
to  foreigners  beyond  the  Tiber. 

Table  IV.  relates  to  paternal  rights. 

I.  Let  the  father  have  the  power  of  life  and  death  over  his  legitimate 
children  and  let  him  sell  them  when  he  pleases. 

II.  But  if  the  father  has  sold  his  son  three  times,  let  the  son  then 
be  out  of  the  father's  power. 

III.  If  the  father  has  a  child  born  which  is  monstrously  deformed 
let  him  kill  him   immediately. 

IV.  Let  not  a  son  whose  father  has  so  far  neglected  his  education 
as  not  to  teach  him  a  trade  be  obliged  to  maintain  his  father  in  want, 
otherwise  let  all  sons  be  obliged  to  relieve  their  fathers. 

V.  Let  not  a  bastard  be  obliged  to  work  to  maintain  his  father. 

Table  V.  permits  the  making  of  wills  and  provides  for  the  division  of 
estates  among  the  heirs  of  intestates. 

Table  VI.  as  given  is : 

I.  When  a  man  conveys  an  estate  to  another  let  the  terms  of  the 
conveyance  create  the  right. 

II.  If  a  slave,  who  was  made  free  on  condition  of  paying  a  certain 
sum,  be  afterward  sold,  let  him  be  set  at  liberty  if  he  pay  the  person 
who  has  bought  him  the  sum  agreed  upon. 

III.  Let  not  any  piece  of  merchandise,  though  sold  and  delivered, 
belong  to  the  buyer  till  he  has  paid  for  it. 

IV.  Let  two  years  possession  amount  to  a  prescription  for  lands  and 
one  for  moveables. 

V.  In  litigated  cases  the  presumption  shall  always  be  on  the  side  of 
the  .possessor,  and  in  disputes  about  liberty  or  slavery  the  presumption 
shall  always  be  on  the  side  of  liberty. 

Table  VII  relates  to  a  number  of  wrongs  and  crimes  and  prescribes 
punishment  or  compensation.  For  maliciously  burning  the  house  or  corn 
of  another, or  for  false  swearing  the  penalty  of  death  is  imposed,  by 
burning  for  the  former  and  hurling  from  the  capitol  for  the  latter. 
Parricides  were  to  be  sewed  in  a  leather  bag  and  thrown  in  the  river. 
One  who  kills  a  f reedman  or  uses  magical  words  to  hurt  Kim  or  prepares 
or  gives  him  poison  is   to  be  punished  as  a  homicide. 

Table  VIII  relates  to  diverse  matters  and  requires  a  space  of  two 
and  one-half  feet  between  houses,  roads  to  be  eight  feet  wide  and 
allows  a  traveller  to  drive  out  on  either  side  of  a  bad  road.  It  permits 
societies  to  make  by-laws,  provided  they  do  not  conflict  with  pul)lic  law. 

Table  IX.  declares  among  other  things. 

I.  Let  not  privilege  be  granted  to  any  person. 


CODE  OF  MANU  1005 

III.  It  shall  be  a  capital  crime  for  a  judge  or  arbitrator  to  take  money 
for   passing   judgment. 

IV.  Let  all  causes  relating  to  the  life  liberty  or  rights  of  a  Roman 
citizen  be  tried  only  in  comitm  by  centuries. 

Table  X.  relates  to  funerals  and  ceremonies  for  the  dead  and  prohibits 
excessive   outlay  or   display  and   excessive   manifestations    of   sorrow. 

Table  XI.  relates  to  public  and  private   worship. 

Table  XII  provides, 

I.  When  a  woman  shall  have  cohabited  with  a  man  for  a  whole  year 
without  having  been  three  nights  absent  from  him,  let  her  be  deemed 
his  wife. 

II.  If  a  man  catches  his  wife  in  adultery  or  finds  her  drunk  he  may 
with  the  consent  of  her  relations  punish  her  even  with  death. 

III.  When  a  man  will  put  away  his  wife,  the  form  of  doing  it  shall 
be  by  taking  from  her  the  keys  of  the  house  and  giving  her  what  she 
brought.     This  shall  be  the  manner  of  a  divorce. 

IV.  A  child  born  of  a  widow  in  the  tenth  month  after  the  decease  of 
her  husband  shall  be  deemed  legitimate. 

V.  It  shall  not  be  lawful  for  the  patricians  to  intermarry  with  the 
plebians." 

MANAVA-DHARMA-SASTRA 
Code  of  Manu 

There  is  no  more  remarkable  code  of  laws  than  that  of  Manu,  re- 
garded by  the  Hindoos  as  the  son  of  Brahma  and  first  of  created  beings. 
The  da-te  of  its  compilation,  in  the  form  in  which  it  is  now  preserved 
in  the  Sanscrit  characters,  is  uncertain.  Sir  William  Jones  estimated 
it  about  880  B.C.  It  is  intensely  religious  in  tone  and  requirements, 
and  is  not  merely  a  set  of  rules  to  be  enforced  by  those  who  govern 
the  multitude,  but  imposes  many  severe  restrictions  on  kings  and  their 
officers  and  the  priestly  order. 

Its  leading  peculiarity  is  that  it  divides  the  people  into  castes,  assigns 
to  each  certain  duties  and  employments,  prohibits  other  methods  of  gain- 
ing subsistence  and  requires  the  education  of  the  young  as  a  civil  and 
religious  duty.  It  prescribes  forms  of  worship,  sacrifices,  religious  and 
domestic  duties,  the  organization  of  governments  and  military  forces, 
rates  of  taxation,  rules  of  property,  of  evidence  and  procedure  in  courts, 
punishments  for  crime,  penance  and  expiation  for  sins  and  transgressions, 
and  teaches  the  transmigration  of  the  soul  from  form  to  form  until 
final  beatitude  is  attained.  In  the  original  it  is  written  in  verse  and  is 
divided  into  twelve  chapters.  In  most  parts  the  rules  are  so  clearly  and 
concisely  stated  that  nothing  can  be  gained  by  attempting  to  summarize 
or  condense.     Chapter  I  gives  an  account  of  the  Creation. 


ioo6  APPENDIX 

1.  "Manu  sat  reclined,  with  his  attention  fixed  on  one  object,  the 
Supreme  God;  when  the  divine  Sages  approached  him,  and,  after  mutual 
salutations  in  due  form,  delivered  the  following  address : 

2.  "Deign,  sovereign  ruler,  to  appraise  us  of  the  sacred  laws  in  their 
order,  as  they  must  be  followed  by  all  the  four  classes,  and  by  each  of 
them,  in  their  several  degrees,  together  with  the  duties  of  every  mixed 
class ; 

3.  For  thou,  Lord,  and  thou  only  among  mortals,  knowest  the  true 
sense,  the  first  principle,  and  the  prescribed  ceremonies,  of  this  universal^ 
supernatural  Veda,   unlimited   in  extent  and  unqualified  in  authority. 

4.  "He  whose  powers  were  measureless,  being  thus  requested  by  the 
great  Sages,  whose  thoughts  were  profound,  saluted  them  with  all  rev- 
erence, and  gave  them  a  comprehensive  answer,   saying :   'Be   it  heard !' 

5.  "This  universe  existed  only  in  the  first  divine  idea  yet  unexpanded,. 
as  if  involved  in  darkness,  imperceptible,  undefinable,  undiscoverable  by 
reason,  and  undiscoverable  by  revelation,  as  if  it  were  wholly  immersed 
in  sleep: 

6.  "Then  the  sole  self-existing  power,  himself  undiscerned  but  making 
this  world  discernible,  with  five  elements  and  other  principles  of  nature,, 
appeared  with  undiminished  glory,  expanding  his  idea,  or  dispelling  the 
gloom. 

7.  "He  whom  the  mind  alone  can  perceive,  whose  essence  eludes  the 
external  organs,  who  has  no  visible  parts,  who  exist  from  eternity,  even 
He,  the  soul  of  all  beings,  whom  no  being  can  comprehend,  shone  forth 
in  person. 

8.  "He,  having  willed  to  produce  various  beings  from  his  own  divine 
substance,  first  with  a  thought  created  the  waters,  and  placed  in  them  a 
productive  seed: 

9.  "The  seed  became  an  egg  bright  as  gold,  blazing  like  the  luminary 
with  a  thousand  beams;  and  in  that  egg,  he  was  born  himself,  in  the 
form  of  Brahma,  the  great  forefather  of  all  spirits. 

10.  "The  waters  are  called  ndrd,  because  they  were  the  production  of 
Nara,  or  the  spirit  of  God;  and  since  they  were  his  first  ayana,  or  place 
of  motion,  he  thence  is  named  Narayana,  or  moving  on  the  waters. 

11.  "From  that  which  is,  the  first  cause,  not  the  object  of  sense,  exist- 
ing everywhere  in  substance,  not  existing  to  our  perception,  without 
being  or  end,  was  produced  the  divine  male,  famed  in  all  worlds  under 
the  appellation  of  Brahma. 

12.  "In  that  egg  the  great  power  sat  inactive  a  whole  year  of  the 
Creator,  at  the  close  of  which,  by  his  thought  alone,  he  caused  the  egg 
to  divide  itself; 

13.  "And  from  its  own  two  divisions  he  framed  the  heaven  above 
and  the  earth  beneath :  in  the  midst  he  placed  the  subtle  ether,  the  eight 
regions,  and  the  permanent  receptacle  of  waters. 

14.  "From  the  supreme  soul  he  drew  forth  Mind,  existing  substantially 


CODE  OF  MANU  1007 

though  unperceived  by  sense,  immaterial ;  and  before  mind,  or  the  reasoning 
power,  he  produced  consciousness,  the  internal  monitor,  the  ruler; 

15.  "And,  before  them  both,  he  produced  the  great  principle  of  the 
soul,  or  first  expansion  of  the  divine  idea;  and  all  vital  forms  endued 
with  the  three  qualities  of  goodness,  passion  and  darkness ;  and  the 
five  perceptions  of  sense,  and  the  five  organs  of  sensation. 

16.  "Thus  having  at  once  pervaded,  with  emanations  from  the  Supreme 
Spiri-t,  the  minutest  portions  of  six  principles  immensely  operative,  con- 
sciousness and  the  five  perceptions,  He  framed  all  creatures; 

31.  "That  the  human  race  might  be  multiplied,  He  caused  the  Brahman^ 
the  Cshatriya,  the  Vaisya,  and  the  Sudra  (so  named  from  the  scripture, 
protection,  wealth,  and  labour)  to  proceed  from  his  mouth,  his  arm, 
his  thigh,  and  his  foot. 

Z^.  "Having  divided  his  own  substance,  the  mighty  power  became  half 
male,  half  female,  or  nature  active  and  passive;  and  from  that  female 
he  produced  Viraj : 

Then  follows  an  account  of  the  creations  of  various  beings  from  lords 
of  created  beings,  genii,  giants  and  men,  to  the  smallest  insects  and 
vegetables. 

51.  "He,  whose  powers  are  incomprehensible,  having  thus  created  both 
me  and  this  universe,  was  again  absorbed  in  the  supreme  Spirit,  changing 
the  time  of  energy  for  the  time  of  repose. 

52.  "When  that  power  awakes  (for  though  slumber  be  not  predicable 
of  the  sole  enternal  Mind,  infinitely  wise  and  infinitely  benevolent,  yet  it  is 
predicted  of  Brahma,  figuratively,  as  a  general  property  of  life)  then 
has  this  world  its  full  expansion;  but,  when  he  slumbers  with  a  tranquil 
spirit,  then  the  whole  system  fades  away; 

53.  "For  while^he  reposes,  as  it  were,  in  calm  sleep,  embodied  spirits, 
endued  with  principles  of  action,  depart  from  their  several  acts,  and  the 
mind  itself  becomes  inert; 

54.  "And  when  they  once  are  absorbed  in  that  supreme  essence,  then 
the  divine  soul  of  beings  withdraws  his  energy,  and  placidly  slumbers; 

55.  "Then  too  this  vital  soul  of  created  bodies,  with  all  the  organs 
of  sense  and  of  action,  remains  long  immersed  in  the  first  idea  or  in 
darkness,  and  performs  not  its  natural  functions,  bat  migrates  from  its 
corporal  frame: 

56.  "When,  being  again  composed  of  minute  elementary  principles,  it 
enters  at  once  into  vegetable  or  animal  seed,  it  then  assumes  a  new  form. 

57.  "Thus  that  immutable  power,  by  waking  and  reposing  alternately, 
revivifies  and  destroys  in  eternal  succession,  this  whole  assemblage  of 
locomotive  and  immovable  creatures." 

After  this  is  a  statement  how  Bhrigu  was  appointed  by  Manu  to 
promulgate  his  laws,  how  time  is  divided  for  mortals  and  for  the  Gods, 
how  Brahma  reposes  during  his  long  night  and  awakening  reanimates 
the  world  and  resumes  the  work  of  creation,  how  time  is  divided  into 
the  Cit^ta,  the  Treta,  the  Dwdpara  and  the  Cali  ages. 


ioo8  APPENDIX 

86.  "In  the  Crfita  the  prevailing  virtue  is  declared  to  be  in  devotion; 
in  the  Treta,  divine  knowledge;  in  the  Dwdpara,  holy  sages  call  sacrifice 
the  duty  chiefly  performed;  in  the  Cali,  liberality  alone. 

%7.  "For  the  sake  of  preserving  this  universe,  the  Being,  supremely 
glorious,  alloted  separate  duties  to  those  who  sprang  respectively  from 
this    mouth,   his   arm,   his   thigh    and   his    foot. 

88.  "To  Brahmans  he  assigned  the  duties  of  reading  the  Veda,  of 
teaching  it,  of  sacrificing,  of  assisting  others  to  sacrifice,  of  giving  alms, 
if  they  be  rich,  and,  if  indigent,  of  receiving  gifts : 

89.  "To  defend  the  people,  to  give  alms,  to  sacrifice,  to  read  the 
Veda,  to  shun  the  allurements  of  sensual  gratification,  are,  in  a  few 
words,  the  duties  of  a  Cshatriya: 

90.  "To  keep  herds  of  cattle,  to  bestow  largesses,  to  sacrifice,  to  read 
the  scripture,  to  carry  on  trade,  to  lend  at  interest,  and  to  cultivate 
land  are  prescribed  or  permitted  to  a  Vaisya: 

91.  "One  principal  duty  the  supreme  Ruler  assigns  to  a  Sudra;  namely, 
to  serve  the  before  mentioned  classes,  without  depreciating  their  worth. 

92.  "Man  is  declared  purer  above  the  navel;  but  the  self-creating 
Power   declared    the   purest   part   of   him   to   be   his    mouth. 

93.  "Since  the  Brahman  sprang  from  the  most  excellent  part,  since 
he  was  the  first  born,  and  since  he  possesses  the  Veda,  he  is  by  right 
the  chief  of  this  whole  creation. 

The  Brahman  is  declared  to  be  a  constant  incarnation  of  Dharma,  God 
of  Justice  and  the  highest  among  men  for  whose  instruction  the  code 
was  promulgated. 

107.  "In  this  book  appears  the  system  of  law  in  its  full  extent,  with 
the  good  and  bad  properties  of  human  actions,  and  the  immemorial 
customs  of  the  four  classes. 

108.  "Immemorial  custom  is  transcendent  law,  approved  in  the  sacred 
scripture,  and  in  the  codes  of  divine  legislators :  let  every  man,  there- 
fore, of  the  three  principal  classes,  who  has  a  due  reverence  for  the 
supreme  spirit  which  dwells  in  him,  diligently  and  constantly  observe 
immemorial  custom : 

The  balance  of  this  chapter  is  a  partial  summary  of  the  contents  of 
the    following  ones. 

The  next  five  chapters  deal  mainly  with  the  education,  duties,  conduct 
and  privileges  of  the  Brahmans.  Chapter  2  is  "On  Education;  or  on 
the   Sacerdotal   Class,   and   the   First   Order." 

1.  "Know  that  system  of  duties,  which  is  revered  by  such  as  are 
learned  in  the  Vedas,  and  impressed,  as  the  means  of  attaining  beatitude, 
on  the  hearts  of  the  just,  who  are  ever  exempt  from  hatred  and 
inordinate   affection. 

2.  "Self-love  is  no  laudable  motive,  yet  an  exemption  from  self-love 
is  not  to  be  found  in  this  worW :  on  self-love  is  grounded  the  study  of 
scripture,   and   the    practice   of    actions    recommend    in    it. 


CODE  OF  MANU  1009 

3.  "Eager  desire  to  act  has  its  root  in  expectation  of  some  advantage; 
and  with  such  expectation  are  sacrifices  performed ;  the  rules  of  religious 
austerity  and  abstinence  from  sins  are  all  known  to  rise  from  hope  of 
remuneration. 

4.  "Not  a  single  act  here  below  appears  ever  to  be  done  by  a  man 
free  from  self-love;  whatever  he  performs,  it  is  wrought  with  his  desire 
of  a  reward. 

5.  "He,  indeed  who  should  persist  in  discharging  these  duties  with- 
out any  view  to  their  fruit,  would  attain  hereafter  the  state  of  the 
immortals,  and  even  in  this  life,  would  enjoy  all  the  virtuous  gratifications, 
that  his  fancy  could  suggest. 

6.  "The  roots  of  law  are  the  whole  Veda,  the  ordinances  and  moral 
practices  of  such  as  perfectly  understand  it,  the  immemorial  customs 
of  good  men,  and,  in  cases  quite  indifferent,  self-satisfaction. 

13.  "A  knowledge  of  right  is  a  sufficient  incentive  for  men  unattached 
to  wealth  or  to  sensuality;  and  to  those  who  seek  a  knowledge  of 
right,  the  supreme  authority  is  divine  revelation. 

14.  "But,  when  there  are  two  sacred  texts,  apparently  inconsistent,  both 
are  held  to  be  law ;  for  both  are  pronounced  by  the  wise  to  be  valid 
and    reconcilable. 

15.  "Thus  in  the  Veda  are  these  texts :  "let  the  sacrifice  be  when 
the  sun  has  arisen,"  and  "before  it  has  arisen,"  and  "when  neither  sun 
nor  stars  can  be  seen :  "  the  sacrifice,  therefore  may  be  performed  at  any 
or  all  of  those  times. 

16.  "He  whose  life  is  regulated  by  holy  texts,  from  his  conception 
even  to  his  funeral  pile,  has  a  decided  right  to  study  this  code;  but 
no  other  man  whatsoever. 

17.  "Between  the  two  divine  rivers  Saras wati  and  Hrishadwati,  lies 
the  tract  of  land,  which  the  sages  have  named  Brahmaverta,  because  it  was 
frequented   by   Gods : 

18.  "The  custom  preserved  by  immemorable  tradition  in  that  country, 
among  the  four  pure  classes,  and  among  those  which  are  mixed,  is  called 
approved  usage. 

28.  "By  studying  the  Veda,  by  religious  observances,  by  oblations  to 
fire,  by  the  ceremony  of  Traividya,  by  offering  to  the  Gods  and  Manes, 
by  the  procreation  of  children,  by  the  five  great  sacraments,  and  by  solemn 
sacrifices,  this  human  body  is  rendered  fit  for  a  divine  state. 

29.  "Before  the  section  of  the  navel  string  a  ceremony  is  ordained  on 
the  birth  of  a  male:  he  must  be  made,  while  sacred  texts  are  pronounced, 
to  taste  a  little  honey  and  clarified  butter  from  a  golden  spoon. 

30.  "Let  the  father  perform  or,  if  absent,  cause  to  be  performed,  on 
the  tenth  or  twelfth  day  after  the  birth,  the  ceremony  of  giving  a  name; 
or  on  some  fortunate  day  of  the  moon,  at  a  lucky  hour,  and  under  the 
influence  of  a  star  with  good  qualities. 

31.  "The   first   part  of   a   Brahman's    compound   name   should   indicate 


loio  APPENDIX 

holiness;  of  a  Cshatriya's,  power;  of  a  Vaisya's,  wealth;  and  a  Sudra's 
con-tempt. 

32.  "Let  the  second  part  of  the  priest's  name  imply  prosperity;  of  the 
soldier's  preservation;  of  the  merchant's  nourishment;  of  the  servant's 
humble  attendance. 

33.  "The  names  of  women  should  be  agreeable,  soft,  clear,  captivating 
the  fancy,  auspicious,  ending  in  long  vowels,  resembling  words  of 
benediction. 

34.  "In  the  fourth  month  the  child  should  be  carried  out  of  the  house 
to  see  the  sun;  in  the  sixth  month  he  should  be  fed  with  rice;  or  that 
may  be  done,  which,  by  the  custom  of  the  family  is  thought  most 
propitious. 

35.  "By  the  command  of  the  Veda,  the  ceremony  of  -tonsure  should  be 
legally  performed  by  the  three  first  classes  in  the  first  of  third  year 
after  birth. 

36.  "In  the  eighth  year  from  the  conception  of  a  Brahman,  in  the 
eleventh  from  -that  of  a  Cshatriya,  and  in  the  twelfth  from  that  of  a 
Vaisya  let  the  father  invest  the  child  with  the  mark  of  his  class : 

37.  "Should  a  Brahman,  or  his  father  for  him,  be  desirous  of  his  ad- 
vancement in  sacred  knowledge;  a  Cshatriya,  of  extending  his  power;  or 
a  Vaisya  of  engaging  in  mercantile  business ;  the  investiture  may  be  made 
in  the  fifth,  sixth,  or  eighth  years  respectively. 

38.  "The  ceremony  of  investiture  hallowed  by  the  gdyatri  must  not  be 
delayed,  in  the  case  of  a  priest,  beyond  the  sixteenth  year;  nor  in  that 
of  a  soldier,  beyond  the  twenty-second ;  nor  in  -that  of  a  merchant,  beyond 
the  twenty-fourth. 

39.  "After  that,  all  youths  of  all  three  classes,  who  have  not  been 
invested  at  the  proper  time,  became  vrdtyas,  or  outcastes,  degraded  from 
the  gdyatri,  and  contemmed  by  the  virtuous : 

53.  "Let  the  student,  having  performed  his  ablution,  always  eat  his 
food  without  dis-traction  of  mind;  and,  having  eaten,  let  him  thrice  wash 
his  mouth  completely,  sprinkling  with  water  the  six  hollow  parts  of  his 
head,  or  his  eyes,  ears,  and  nostrils. 

54.  "Let  him  honor  all  his  food,  and  eat  it  without  contempt;  when  he 
sees  it  let  him  rejoice  and  be  calm,  and  pray  that  he  may  always  obtain  it. 

55.  "Food,  eaten  constantly  with  respect,  gives  muscular  force  and 
generative  power;  but,  eaten  irreverently,  destroys  them  both. 

56.  "He  must  beware  of  giving  any  man  what  he  leaves;  and  of  eating 
anything  between  morning  and  evening :  he  must  also  beware  of  eating  too 
much,  and  of  going  any  whither  with  a  remnant  of  his  food  unswallowed. 

63.  "A  youth  of  the  three  highest  classes  is  named  upaviti,  when  his 
right  hand  is  extended  for  the  cord  to  pass  over  his  head  and  be  fixed 
on  his  left  shoulder:  when  his  left  hand  is  extended,  that  the  thread 
may  be  placed  on  his  right  shoulder,  he  is  called  prdchindviti ;  and 
naviti,  when  it  is  fastened  on  his  neck. 


CODE  OF  MANU  ion 

64.  "His  girdle,  his  leathern  mantle,  his  staff,  his  sacrificial  cord,  and 
his  ewer,  he  (must  throw  into  the  water,  when  they  are  worn  out  or 
broken,  and  receive  others  hallowed  by  mystical  texts. 

65.  "The  ceremony  of  cesanta,  or  cutting  off  the  hair,  is  ordained  for  a 
priest  in  the  sixteenth  year  from  conception;  for  a  soldier  in  the  twenty- 
second;  for  a  merchant  two  years  later  than  that. 

66.  "The  same  ceremonies,  except  that  of  the  sacrificial  thread,  must 
be  duly  performed  for  women  at  the  same  age  and  in  the  same  order, 
that  the  body  may  be  made  perfect;  but  without  any  text  from  the  Veda. 

67.  "The  nuptial  ceremony  is  considered  as  the  complete  institution  of 
women,  ordained  for  them  in  the  Veda,  together  with  reverence  of  their 
husbands,  dwelling  first  in  their  fathers  family,  the  business  of  the  house, 
and  attention  to  sacred  fire. 

69.  "The  venerable  preceptor  having  girt  his  pupil  with  the  thread,  must 
first  instruct  him  in  purification,  in  good  customs,  in  the  management 
of  the  consecrated  fire,  and  in  the  holy  rites  of  morning,  noon,  and 
evening. 

70.  "When  the  student  is  going  to  read  the  Veda,  he  must  perform  an 
ablution,  as  the  law  ordains,  with  his  face  to  the  north,  and,  having  paid 
scriptural  homage,  he  must  receive  instruction,  wearing  a  clean  vest,  his 
members  being  duly  composed. 

71.  "At  the  beginning  and  end  of  the  lecture,  he  must  always  clasp  both 
the  feet  of  his  preceptor;  and  he  must  read  with  both  his  hands  closed: 
(this  is  called  scriptural  homage.) 

y6.  "Brahma  milked  out,  as  it  were,  from  the  three  Vedas,  the  letter  A, 
the  letter  U,  and  the  letter  M,  which  form  from  their  coalition  the  triliteral 
monosyllables,  together  with  three  mysterious  words,  hhur,  bhuvah,  swer,  or 
earth,  sky,  heaven : 

79.  "And  a  twice  born  man,  who  shall  a  thousand  times  repeat  those 
three  (or  dm,  the  vydhntis,  and  the  gdyatrl,)  apart  from  the  multitude, 
shall  be  released  in  a  month  even  from  a  great  offense,  as  a  snake  from 
his  slough. 

80.  "The  priest,  the  soldier  and  the  merchant,  who  shall  neglect  this 
mysterious  text,  and  fail  to  perform  in  due  season  his  peculiar  acts 
of    piety,    shall   meet   with    contempt    among   the    virtuous." 

The  organs  of  sense  are  enumerated  and  the  necessity  for  keeping 
mastery  of  them  and  abs'taining  from  sensual  gratification  is  declared. 
Self-control,  repetition  of  the  holy  texts,  purification  by  bathing  and 
reading   the    Veda   are   enjoined    over    and    over   again. 

108.  "Let  the  twice-born  youth,  who  has  been  girt  with  the  sacrificial 
cord,  collect  wood  for  the  holy  fire,  beg  food  of  his  relations,  sleep 
on  a  low  bed,  and  perform  such  offices  as  may  please  his  preceptor, 
until  his  return  to  the  house  of  his  natural  father. 

109.  "Ten  persons  may  legally  be  instructed  in  the  Veda;  the  son 
of   a   spiritual   teacher ;   a  boy  who   is   assiduous ;   one   who   can   impart 


10I2  APPENDIX 

other  knowledge;  one  who  is  just;  one  who  is  pure;  one  who  is 
friendly;  one  who  is  powerful;  one  who  can  bestow  wealth,  one  who 
is  honest;  and  one  who  is  related  by  blood. 

no.  "Let  not  the  sensible  teacher  tell  any  other  what  he  is  not 
asked,  nor  what  he  is  asked  improperly;  but  let  him,  however  intelligent,, 
act  in  the  multitude  as  if  he  were  dumb: 

III.  "Of  the  two  persons  him,  who  illegally  asks,  and  him,  who 
illegally  answers,  one  will  die,  or  incur  odium." 

Definite  rules  are  given  for  saluting  persons  of  the  various  classes 
and  those  related  to  the  speaker  in  the  degrees  named. 

138.  "Way  must  be  made  for  a  man  in  a  wheeled  carriage,  or  above 
ninety  years  old,  or  afflicted  with  disease,  or  carrying  a  burthen;  for 
a  woman;  for  a  priest  just  returned  from  the  mansion  of  his  preceptor; 
for  a  prince  and  for  a  bridegroom: 

146.  "Of  him,  who  gives  natural  birth,  and  him,  who  gives  knowledge 
of  the  whole  Veda,  the  giver  of  sacred  knowledge  is  the  more  venerable 
father;  since  the  second  or  divine  birth  ensures  life  to  the  twice-born 
both  in  this  world  and  hereafter  eternally. 

154.  "Greatness  is  not  conferred  by  years,  not  by  gray  hairs  nor 
by  wealth,  not  by  powerful  kindred :  the  divine  sages  have  established 
this  rule;  "whoever  has  read  the  Vedas  and  their  Angas,  he  among 
us  is  great." 

155.  "The  seniority  of  priests  is  from  sacred  learning;  of  warriors 
from  valour;  of  merchant  from  abundahce  of  grain;  of  the  servile 
class  only  from  priority  of  birth. 

159.  "Good  instruction  must  be  given  without  pain  to  the  instructed; 
and  sweet  gentle  speech  must  be  used  by  a  preceptor,  who  cherishes 
virtue. 

160.  "He,  whose  discourse  and  heart  are  pure,  and  ever  perfectly 
guarded,  attains  all  the  fruit  arising  from  his  complete  course  of 
studying  the  Veda. 

161.  "Let  not  a  man  be  querulous  even  though  in  pain;  let  him  not 
injure  another  in  deed  or  in  thought;  let  him  not  even  utter  a  word,, 
by  which  his  fellow  creature  may  suffer  uneasiness;  since  that  wilt 
obstruct  his  own  progress  to  future  beatitude. 

162.  "A  Brahman  should  constantly  shun  worldly  honour,  as  he  would 
shun  poison ;  and  rather  constantly  seek  disrespect,  as  he  would  seek 
nectar ; 

163.  "For  though  scorned,  he  may  sleep  with  pleasure ;  with  pleasure 
may  be  awake;  with  pleasure  may  he  pass  through  this  life;  but  the 
scorner  utterly  perishes. 

171.  "Sages  call  the  Achdrya  father,  from  his  giving  instruction  in 
the  Veda:  nor  can  any  holy  rite  be  performed  by  a  young  man,  before 
his  investiture. 

172.  "Till   he   be  invested   with   the   signs   of   his   class,   he   must   not 


CODE  OF  MANU  1013 

pronounce  any  sacred  text,  except  what  ought  to'  be  used  in  obsequies 
to  an  ancestor;  since  he  is  on  a  level  with  a  Sudra  before  his  new 
birth  from  the  revealed  scripture: 

175.  "These  following  rules  must  a  Brahmachari,  or  student  in  theology 
observe,  while  he  dwells  with  his  preceptor;  keeping  all  his  members 
under  control,  for  the  sake  of  increasing  his  habitual  devotion. 

176.  "Day  by  day,  having  bathed  and  been  purified,  let  him  offer  fresh 
water  to  the  gods,  the  Sages,  and  the  Manes;  let  him  show  respect  to 
the  images  of  the  deities,  and  bring  wood  for  the  oblation  to  fire. 

177.  "Let  him  abstain  from  honey,  from  fresh  meat,  from  perfumes, 
from  chaplets  of  flowers,  from  sweet  veget?ible  juices,  from  women, 
from  all  sweet  substances  turned  acid,  and  from  injury  to  animated 
beings ; 

178.  "From  unguents  for  his  limbs,  and  from  black  powder  for  his 
eyes,  from  wearing  sandals,  and  carrying  an  umbrella,  from  sensual 
desires,  from  wrath,  from  covetousness,  from  dancing,  and  from  vocal  and 
instrumental   music ; 

179.  "From  gaming,  from  disputes,  from  detraction,  and  from  false- 
hood, from  embracing  or  wantonly  looking  at  women,  and  from  dis- 
service to  other  men. 

182.  "Let  him  carry  water-pots,  flowers,  cow-dung,  fresh  earth  and 
cusa-grass,  as  much  as  may  be  useful  to  his  preceptor;  and  let  him 
perform  every  day  the  duty  of  a  religious  mendicant. 

183.  "Each  day  must  a  Brahman  student  receive  his  food  by  begging 
with  due  care,  from  the  houses  of  persons  renowned  for  discharging 
their  duties,  and  not  deficient  in  performing  the  sacrifices  which  the 
Veda  ordains. 

184.  "Let  him  not  beg  from  the  cousins  of  his  preceptor;  nor  from 
his  own  cousins;  nor  from  other  kinsmen  by  the  fathers  side,  or  by 
the  mothers;  but,  if  other  houses  be  not  accessible,  let  him  begin  with 
the  last  of  those  in  order,  avoiding  the  first; 

185.  "Or,  if  none  of  those  houses  just  mentioned  can  be  found, 
let  him  go  begging  through  the  whole  district  round  the  village,  keeping 
his  organs  in  subjection,  and  remaining  silent;  but  let  him  turn  away 
from  such  as  have  committed  any  deadly  sin. 

186.  "Having  brought  logs  of  wood  from  a  distance,  let  him  place 
them  in  the  open  air ;  and  with  them  let  him  make  an  oblation  to  fire 
without  remissness,  both  evening  and  morning. 

187.  "He,  who  for  seven  successive  days  omits  the  ceremony  of 
begging  food,  and  offers  not  wood  to  the  sacred  fire,  must  perform  the 
penance  of   an  avacirni,  unless  he  be  afflicted  with   illness. 

188.  "Let  the  student  persist  constantly  in  such  begging,  but  let  him 
not  eat  the  food  of  one  person  only;  the  subsistence  of  a  student  by 
begging  is  held  equal  to  fasting  in  religious  merit. 

189.  "Yet,  when  he  is  asked  in  a  solemn  act  in  honour  of  the  Gods 


I0I4  APPENDIX 

or  the  Manes,  he  may  eat  at  his  pleasure  the  food  of  a  single  person ; 
observing,  however,  the  laws  of  abstinence  and  the  austerity  of  an 
anchoret:  thus  the  rule  of  his  order  is  kept  inviolate. 

190.  "This  duty  of  a  mendicant  is  ordained  by  the  wise  for  a  Brahman 
only;  but  no  such  act  is  appointed   for  a  warrior,  or  for  a  merchant." 

Very  precise  rules  are  given  for  the  conduct  of  the  scholar  in  the 
presence  of  his  preceptor  and  while  receiving  instruction.  The  utmost 
respect  and  deference  must  be  constantly  shown. 

224.  "The  chief  temporal  good  is  by  some  declared  to  consist  in 
virtue  and  wealth;  by  some,  in  wealth  and  lawful  pleasure;  by  some,  in 
virtue  alone;  by  others,  in  wealth  alone;  but  the  chief  good  here  below 
is  an  assemblage  of  all  three :  this  is  a  sure  decision : 

225.  "A  teacher  of  the  Veda  is  the  image  of  God;  a  natural  father, 
the  image  of  Brahma;  a  mother,  the  image  of  the  e?rth;  an  elder  whole 
brother,  the  image  of  the  soul. 

226.  "Therefore  a  spiritual  and  a  natural  father,  a  mother  and  an 
elder  brother,  are  not  to  be  treated  with  disrespect,  especially  by  a 
Brahman,  though  the  student  be  grievously  provoked. 

227.  "That  pain  and  care  which  a  mother  and  father  undergo  in  pro- 
ducing and  rearing  children,  cannot  be  compensated  in  a  hundred  years. 

228.  "Let  every  man  constantly  do  what  may  please  his  parents: 
and,  on  all  occasions  ,  what  may  please  his  preceptor;  when  those  three 
are  satisfied,   his  whole  course  of   devotion   is   accomplished. 

241.  "In  case  of  necessity,  a  student  is  required  to  learn  the  Veda, 
from  one  who  is  not  a  Brahman,  and,  as  long  as  that  instruction 
continues,    to    honour   his    instructor   with    obsequious    assiduity; 

242.  "But  a  pupil  who  seeks  the  incomparable  path  to  heaven,  should 
not  live  to  the  end  of  his  days  in  the  dwelling  of  a  preceptor  who  is 
no    Brahman,   or   who   has   not   read   all   the   Vedas    with   their   Angas. 

245.  "Let  not  a  student,  who  knows  his  duty,  present  any  gift  to 
his  preceptor  before  his  return  home;  but  when,  by  his  tutors  per- 
mission, he  is  going  to  perform  the  ceremony  on  his  return,  let  him 
give  the  venerable  man  some  valuable  thing  to  the  best  of  his  power; 

246.  "A  field,  or  gold,  a  jewel,  a  cow,  or  a  horse,  an  umbrella,  a 
pair  of  sandals,  a  stool,  corn,  clothes,  or  even  any  very  excellent  vegetable : 
thus  will  he  gain  the  affectionate  remembrance  of  his  instructor. 

247.  "The  student  for  life  must,  if  his  teacher  die,  attend  on  his 
virtuous  son  or  his  widow,  or  on  one  of  his  paternal  kinsmen,  with 
the    same    respect    which    he    showed    to    the    living: 

248.  "Should  none  of  those  be  alive,  he  must  occupy  the  station  of 
his  preceptor,  the  seat,  and  the  place  of  religious  exercises ;  must 
continually  pay  due  attention  to  the  fires,  which  he  had  consecrated; 
and    must   prepare   his   own   soul    for   heaven. 

■Chapter  3  is   "On   Marriage   or  the   Second   Order." 

I.    "The  discipline  of  the  student  in  the  three  Vedas  may  be  continued 


CODE  OF  MANU  1015 

for  thirty-six  years,   in   the   house   of   his   preceptor;   or   for   half   that 
time,   or   for  a  quarter  of   it,   or  until  he  perfectly  comprehend  them: 

2.  "A  student,  whose  rules  have  not  been  violated,  may  assume 
the  order  of  a  married  man,  after  he  has  read  in  succession  a  sdc'hd, 
or  branch  from  each  of  the  three,  or  from  two,  or  from  any  one  of  them. 

3.  "Being  justly  applauded  for  the  strict  performance  of  his  duty 
and  having  received  from  his  natural  or  spiritual  father  the  sacred 
gift  of  the  Veda,  let  him  sit  on  an  elegant  bed,  decked  with  a  garland 
of  flowers,  and  let  his  father  honour  him,  before  his  nuptials,  with  a 
present   of   a   cow. 

4.  "Let  the  twice-born  man,  having  obtained  the  consent  of  his 
venerable  guide,  and  having  performed  his  ablutions  with  stated  cere- 
monies, on  his  return  home,  as  the  law  directs,  espouse  a  wife  of  the 
same    class    with    himself    and    endued    with    the    marks    of    excellence. 

5.  "She,  who  is  not  descended  from  his  paternal  or  maternal  an- 
cestors, within  the  sixth  degree,  and  who  is  not  known  by  her  family 
name  to  be  of  the  same  primitive  stock  with  his  father  or  mother, 
is  eligible  by  a  twice-born  man  for  nuptials  and  holy  union: 

6.  "In  connecting  himself  with  a  wife,  let  him  studiously  avoid  the 
ten  following  families,  be  they  ever  so  great,  or  ever  so  rich  in  kine, 
goats,    sheep,   gold   and   grain: 

7.  "The  family  which  has  omitted  prescribed  acts  of  religion;  that 
which  has  produced  no  male  children;  that,  in  which  the  Veda  has 
not  been  read;  that,  which  has  thick  hair  on  the  body;  and  those,  which 
have  been  subject  to  hemorrhoids,  to  phthisis,  to  dyspepsia,  to  epilepsy, 
to   leprosy,   and   to   elephantiasis. 

8.  "Let  him  not  marry  a  girl  with  reddish  hair,  nor  with  any  deformed 
limb;  nor  one  troubled  with  habitual  sickness;  nor  one  either  with  no 
hair  or  with  too  much;  nor  one  immoderatively  talkative;  nor  one  with 
inflamed  eyes ; 

9.  "Nor  one  with  the  name  of  a  constellation,  or  of  a  tree,  or  of  a 
river,  of  a  barbarous  nation,  or  of  a  mountain,  of  a  winged  creature, 
a   snake   or   a    slave;    nor   with    any   name   raising  an    image   of   terror. 

10.  "Let  him  chuse  for  his  wife  a  girl,  whose  form  has  no  defect, 
who  has  an  agreeable  name;  who  walks  gracefully  like  a  plenicopteros, 
or  like  a  young  elephant;  whose  hair  and  teeth  are  moderate  respectively 
in  quantity  and  size;  whose  body  has  exquisite  softness. 

11.  "Her,  who  has  no  brother,  or  whose  father  is  not  well  known, 
let  no  sensible  man  espouse,  through  fear  les-t,  in  the  former  case,  her 
father  should  take  her  first  son  as  his  own  to  perform  his  obsequies ; 
or,  in  the  second  case,  lest  an  illicit  marriage  should  be  contracted. 

12.  "For   the   first   marriage   of  the   twice-born   classes,   a   woman   of 
the   same   class   is .  recommended ;    but   for   such   as    are   impelled    from  • 
inclination   to   marry   again,    women   in   the    direct   order   of   the   classes 
are  to  be  preferrerd; 


ioi6  APPENDIX 

13.  "A  Sudra  woman  only  must  be  the  wife  of  a  Sudra;  she  and  a 
Vaisya,  of  a  Vaisya;  they  two  and  a  Cshatryia,  of  a  Cshatriya;  those 
two  and  a  Brahmani  of  a  Brahman." 

Eight  forms  of  marriage  ceremony  are  named  and  defined  as  follows: 
2T.    "The   gift    of    a    daughter,    clothed   only    with    a   single    robe,    to 
a  man  learned  in   the  Veda,   whom   her   father  voluntarily  invites,   and 
respectfully   receives,   is  the   nuptial   right  called   Brahma. 

28.  "The  rite  which  sages  call  Daiva,  is  the  gift  of  a  daughter,  whom 
her  father  has  decked  in  gay  attire,  when  the  sacrifice  is  already  begun, 
to  the  officiating  priest,  who  performs  that  act  of  religion. 

29.  "When  the  father  gives  his  daughter  away,  after  having  received 
from  the  bridegroom  one  pair  of  kine,  or  two  pairs,  for  uses  prescribed" 
by  law,  that  marriage  is  termed  Arsha. 

30.  "The  nuptial  rite  called  Prdjdpatya,  is  when  the  father  gives  away 
his  daughter  with  due  honour,  saying  distinctly,  "May  both  of  you  perform 
together  your  civil  and  religious  duties." 

31.  "When  the  bridegroom,  having  given  as  much  wealth  as  he  can 
afford  to  the  father  and  paternial  kinsmen,  and  to  the  damsel  herself, 
takes   her  voluntarily  as  his  bride,  that  marriage  is  named  Asura. 

32.  "The  reciprocal  connection  of  a  youth  and  a  damsel,  with  mutual 
desire,  is  the  marriage  denominated  Gdndharva,  contracted  for  the  pur- 
pose of  amorous  embraces,  and  proceeding  from  sensual  inclination. 

ZZ'  "The  seizure  of  a  maiden  by  force  from  her  house,  while  she 
weeps  and  calls  for  assistance,  after  her  kinsmen  and  friends  hav« 
been  slain  in  battle,  or  wounded  and  their  houses  broken  open,  is  the 
marriage  styled  Racshasa. 

34.  "When  the  lover  secretly  embraces  the  damsel,  either  sleeping 
or  flushed  with  strong  liquor,  or  disordered  in  her  intellect,  that  sinful 
marriage,  called  Paisdcha,  is  the  eighth  and  the  basest. 

35.  "The  gift  pf  daughters  in  marriage  by  the  sacerdotal  class,  is 
most  approved  when  they  previously  have  poured  water  into  the  hands 
of  the  bridegroom;  but  the  ceremonies  of  the  other  classes  may  be 
performed  according  to  their  several   fancies." 

The  good  effects  flowing  from  the  first  four  marriages  are  declared 
and  the  evil  effects  of  the  four  base  ones. 

6y.  "Let  the  housekeeper  perform  domestic  religious  rites,  with  the 
nuptial  fire,  according  to  law,  and  the  ceremonies  of  the  five  great 
sacraments,  and  the  several  acts  which  must  day  by  daj'  be  performed. 

68.  "A  housekeeper  has  five  places  of  slaughter,  or  where  small  living 
creatures  may  be  slain;  his  kitchen-hearth,  his  grindstone,  his  broom, 
his  pestle  and  mortar,  his  water-pot;  by  using  which,  he  becomes  in 
bondage  to  sin. 

69.  "For  the  sake  of  expiating  offences  committed  ignorantly  in  those 
places  mentioned  in  order,  the  five  great  sacraments  were  appointed  by 
eminent   sages  to  be  performed   each  day  by  such   as  keep   house. 


CODE  OF  MANU  1017 

70.  "Teaching  and  studying  the  scripture  is  the  sacrament  of  the 
Veda;  offering  cakes  and  water,  the  sacrament  of  the  Manes;  an  ob- 
lation to  fire  the  sacrament  of  the  Deities;  rice  or  other  food  to  living 
creatures,  the  sacrament  of  spirits;  receiving  guests  with  honour,  the 
sacrament  of  men : 

71.  "Whoever  omits  not  those  five  great  ceremonies,  if  he  have  ability 
to  perform  them,  is  untainted  by  the  sins  of  the  five  slaughtering-places, 
even  though  he  constantly  reside  at  home. 

^2.  "But  whoever  cherishes  not  five  orders  of  beings,  namely,  the 
deities;  those  who  demand  hospitality;  those,  whom  he  ought  by  law  to 
maintain;  his  departed  forefathers;  and  himself;  that  man  lives  not 
even  though  he  breathe." 

Very  full  and  definite  rules  are  declared  for  the  various  sacraments 
and  oblations  to  be  performed  by  householders  and  hospitality  is  strictly 
enjoined. 

105.  "No  guest  must  be  dismissed  in  the  evening  by  a  house-keeper, 
he  is  sent  by  the  retiring  sun;  and,  whether  he  came  in  fit  season  or 
unseasonably,  he  must  not  sojourn  in  the  house  without  entertainment. 

106.  "Let  not  himself  eat  any  delicate  food,  without  asking  his  guest 
to  partake  of  it:  the  satisfaction  of  a  guest  will  assuredly  bring  the 
house-keeper  wealth,  reputation,  long  life,  and  a  place  in  heaven." 

The  performance  of  oblations  to  deceased  ancestors  is  treated  as  a 
matter  of  great  importance,  and  rules  are  given  as  to  the  guests  to  be 
invited  and  excluded  and  places  and  manner  in  which  the  srdddha  is  to 
be  performed.  The  kinds  of  food  to  be  provided,  the  manner  of  serving 
and  the  precedence  to  be  accorded  to  the  different  guests  are  stated  in 
detail,  and  the  salutations  to  be  made  to  the  guests  at  the  conclusion 
are  given. 

278.  "As  the  latter  or  dark  .half  of  the  month  surpasses,  for  the 
celebration  of  obsequies,  the  former  or  bright  half,  so  the  latter  half 
of  the  day  surpasses  for  the  same  purpose,  the  former  half  of  it. 

279.  "The  oblation  to  ancestors  must  be  duly  made,  even  to  the  con- 
clusion of  it  with  the  distribution  to  the  servants,  (or  even  to  the  close 
of  life),  in  the  form  prescribed,  by  a  Brahman  wearing  his  thread  on 
his  right  shoulder,  proceeding  from  left  to  right,  without  remissness, 
and  with  cMja-grass  in  his  hand. 

280.  "Obsequies  must  not  be  performed  by  night;  since  the  night  is 
called  rdchast,  or  infested  by  demons ;  nor  while  the  sun  is  rising  or 
setting,  nor  when  it  has  just  arisen. 

281.  "A  house-keeper  unable  to  give  a  monthly  repast,  may  perform 
obsequies  here  below,  according  to  the  sacred  ordinance,  only  thrice  a 
year,  in  the  seasons  of  hemanta,  grishma,  and  vershd;  but  the  five 
sacramenta  he  must  perform  daily. 

282.  "The  sacrificial  oblation  at  obsequies  to  ancestors,  is  ordained  to 
be   made   in   no   vulgar   fire;   nor   should   the   monthly   srdddha  of   that 


ioi8  APPENDiIX 

Brahman,  who  keeps  a  perpetual  fire,  be  made  on  any  day,  except  on  that 
of  the  conjunction. 

283.  When  a  twice-born  man,  having  performed  his  ablution,  offers 
a  satisfaction  to  the  Manes  with  water  only,  -being  unable  to  give  a 
repast,  he  gains  by  that  offering  all  the  fruit  of  a  srdddha. 

Chapter  four  is  entitled,  "On  Economics;  and  Private  Morals." 

1.  "Let  a  Brahman,  having  dwelt  with  a  preceptor  during  the  first 
quarter  of  a  man's  life,  pass  the  second  quarter  of  human  life  in  his 
own  house,  when  he  has  contracted  a  legal  marriage. 

2.  "He  must  live  with  no  injury,  or  with  the  least  possible  injury 
to  animated  beings,  by  pursuing  those  means  of  gaining  subsistence^ 
which  are  strictly  prescribed  by  law,  except  in  times  of  distress. 

3.  "For  the  sole  purpose  of  supporting  life,  let  him  acquire  property 
by  those  irreproachable  occupations,  which  are  peculiar  to  his  class, 
and  unattended  with  bodily  pain. 

4.  "He  may  live  by  rita  and  amrita,  or,  if  necessary,  by  mrita,  or 
pramrita,  or  even  by  satydnrita;  but  never  let  him  subsist  by  swavritti: 

5.  "By  rita  must  be  understood  lawful  gleaning  and  gathering  by  amrita, 
what  is  given  unasked;  by  nmta,  what  is  asked  as  alms;  tillage  is  called 
pramrXta;  , 

6.  "Traffic  and  money-lending  are  satydnrita;  even  by  them  when 
he  is  deeply  distressed,  may  he  support  life;  but  service  for  hire  is 
named  swavritti,  or  dog-living,  and  of  course  he  must  by  all  means  avoid  it. 

11.  "Let  him  never  for  the  sake  of  a  subsistence,  have  recourse  to 
popular  conversation;  let  him  live  by  the  conduct  of  a  priest,  neither 
crooked,  nor  artful,  nor  blended  with  the  manners  of  the  mercantile  class. 

12.  "Let  him,  if  he  seek  hapiness,  be  firm  in  perfect  content,  and 
check  all  desire  of  acquiring  more  than  he  possesses;  for  hapiness  has 
its  root  in  content,  and  discontent  is  the  root  of  misery." 

He  is  enjoined  to  perform  his  daily  duties  without  sloth,  avoiding 
sensual  gratification,  and  reading  the  holy  books. 

29.  "Let  him  take  care,  to  the  utmost  of  his  power,  that  no  guest 
sojourn  in  his  house  unhonoured  with  a  seat,  with  food,  with  a  bed, 
with  water,  with  esculent  roots,   and  with   fruit: 

30.  "But,  let  him  not  honour  with  his  conversation  such  as  do  for- 
bidden acts ;  such  as  subsist  like  cats,  by  interested  craft ;  such  as  believe 
not  the  scripture;  such  as  oppugn  it  by  sophisms  or  such  as  live  like 
rapacious  water-birds. 

33.  A  priest  who  is  master  of  a  family,  and  pines  with  hunger,  may 
seek  wealth  from  a  king  of  the  military  class,  from  a  sacrificer,  or  his 
own  pupil,  but  from  no  person  else,  unless  all  other  helps  fail:  thus 
will  he  show  his  respect  for  the  law. 

34.  "Let  no  priest,   who   keeps   house,   and   is   able  to   procure   food,. 


CODE  OF  MANU  1019 

ever  waste  himself  with  hunger;  nor,  when  he  has  any  substance,  let  him 
wear  old  or  sordid  clothes. 

35.  "His  hair,  nails,  and  beard  being  clipped;  his  passions  subdued; 
his  mantle,  white,  his  body  pure;  let  him  diligently  occupy  himself  in 
reading  the  Veda,  and  be  constantly  intent  on  such  acts,  as  may  be 
salutary  to  him. 

2,7.  "He  must  not  gaze  on  the  sun,  whether  rising  or  setting,  or 
eclipsed,   or  reflected   in   water,   or  advanced  to   the  middle  of   the   sky. 

2,^.  "Over  a  string,  to  which  a  calf  is  tied,  let  him  not  step;  nor  let 
him  run  while  it  rains ;  nor  let  him  look  on  his  own  image  in  water : 
this  is   a  settled  rule. 

39,  "By  a  mound  of  earth,  by  a  cow,  by  an  idol,  by  a  Brahman,  by  a 
pot  of  clarified  butter,  or  of  honey,  by  a  place  where  four  ways  meet, 
and  by  large  trees  well  known  in  the  district,  let  him  pass  with  his  right 
hand  toward  them. 

43.  Let  him  neither  eat  with  his  wife  nor  look  at  her  eating,  or  sneezing, 
or  yawning,  or  sitting  carelessly  at  her  ease." 

Many  other  rules  of  personal  conduct  are  given  which  appear  quite 
whimsical. 

66.  "Let  him  not  use  either  slippers  or  clothes,  or  a  sacerdotal  string, 
or  an  ornament,  or  a  garland,  or  a  waterpot,  which  before  have  been 
used  by  another. 

76.  "Let  him  take  his  food,  having  sprinkled  his  feet  with  water, 
but  never  let  him  sleep  with  his  feet  wet :  he,  who  takes  his  food  with 
his   feet  so  sprinkled,   will  attain  long  life. 

yy.  Let  him  never  advance  into  a  place  undistinguishable  by  his  eye, 
or  not  easily  passable :  never  let  him  look  at  urine  or  ordure ;  nor  let 
him  pass  a  river  swimming  with  his  arms. 

78.  "Let  not  a  man,  who  desires  to  enjoy  long  life,  stand  upon  hair, 
nor  upon  ashes,  bones,  nor  potsherds,  nor  upon  seeds  of  cotton,  nor 
upon  husks  of  grain. 

79.  "Nor  let  him  tarry  even  under  the  shade  of  the  same  tree  with 
outcasts  for  great  crimes,  nor  with  Chandalas,  nor  with  Puccasas,  nor 
with  idiots,  nor  with  men  proud  of  wealth,  nor  with  washermen  and 
other  vile  persons,  nor  with  Antyavasayins. 

80.  "Let  him  not  give  even  temporal  advice  to  a  Sudra ;  nor,  except  to 
his  own  servant,  what  remains  from  his  table;  nor  clarified  butter,  of  which 
part  has  been  offered  to  the  gods;  nor  let  him  in  person  give  spiritual 
counsel  to  such  a  man,  nor  personally  inform  him  of  the  legal  expiation  for 
his  sin : 

84.  "From  a  king,  not  born  in  the  military  class,  let  him  accept  no 
gift,  nor  from  such  as  keep  a  slaughterhouse,  or  an  oil  press,  or  put  out 
a  vintner's  flag,  or  subsist  by  the  gain  of  prostitutes : 

85.  "One  oil-press  is  as  bad  as  ten  slaughter-houses;  one  vintners  flag. 


I020  APPENDIX 

as  ten  oil-presses;   one  prostitute  as  ten   vintners   flags;   one  such  king 
as  ten  prostitutes; 

86.  "With  a  slaughterer,  therefore,  who  employs  tefl  thousand  slaughter- 
houses, a  king,  not  a  soldier  by  birth,  is  declared  to  be  on  a  level ;  and 
a  gift  from  him  is  tremendous. 

87.  "He,  who  receives  a  present  from  an  avaricious  king  and  a  trans- 
gressor of  the  sacred  ordinances,  goes  in  succession  to  the  following 
twenty-one  hells: 

102.  "By  night,  when  the  wind  meets  his  ear,  and  by  day  when  the 
dust  is  collected,  he  must  not  read  in  the  season  of  rain;  since  both  those 
times  are  declared  unfit  for  reading,  by  such  as  know  when  the  Veda 
ought  to  be  read. 

103.  "In  lightning,  thunder  and  rain,  or  during  the  fall  of  large 
fireballs  on  all  sides,  at  such  times  Manu  has  ordained  the  reading  of 
scripture  to  be  deferred  till  the  same  time  next  day. 

104.  "When  the  priest  perceives  those  accidents  occurring  at  once,  while 
his  fires  are  kindled  for  morning  and  evening  sacrifices,  then  let  him 
know,  that  the  Veda  must  not  be  read ;  and  when  clouds  are  seen  gathered 
out  of  season. 

111.  "As  long  as  the  scent  and  unctuosity  of  perfumes  remain  on  the 
body  of  a  learned  priest,  who  has  partaken  of  an  entertainment,  so  long 
he  must  abstain  from  pronouncing  the  texts  of  the  Veda. 

112.  "Let  him  not  read  lolling  on  a  couch,  nor  with  his  feet  raised 
on  a  bench,  nor  with  his  thighs  crossed,  nor  having  lately  swallowed 
meat,  or  the  rice  and  other  food  on  the  birth  or  death  of  a  relation; 

113.  ^'Nor  in  a  cloud  of  dust,  nor  while  arrows  whiz,  or  a  lute  sounds, 
nor  in  either  of  the  twilights,  nor  at  the  conjunction,  nor  on  the  fourteenth 
day,  nor  at  the  opposition,  nor  on  the  eighth  day,  of  the  moon: 

117.  "Be  it  an  animal,  or  a  thing  inanimate,  or  whatever  be  the  gift 
at  a  srdddha,  let  him  not,  having  lately  accepted  it,  read  the  Veda;  for 
such  a  Brahman  is  said  to  have  his  mouth  in  his  hand. 

118.  "When  the  town  is  beset  by  robbers,  or  an  alarm  has  been  raised 
by  fire,  and  in  all  terrors  frooii  strange  phenomena,  let  hiim  know  that 
his  lecture  must  be  suspended  till  the  due  time  after  the  cause  of  terror 
be  ceased." 

Other  times  and  circumstances  are  mentioned  which  render  it  incumbent 
on  the  Brahman  to  abstain  from  or  suspend  reading  the  Veda. 

135.  "Never  let  him  who  desires  an  increase  of  wealth,  despise  a 
warrior,  a  serpent,  or  a  priest  versed  in  scripture,  how  mean  soever  they 
may  appear; 

136.  "Since  those  three  when  contemmed,  may  destroy  a  man;  let  a 
wise  man  therefore  always  beware  of  treating  those  three  with  contempt, 

137.  "Nor  should  he  despise  even  himself  on  account  of  previous  mis- 


CODE  OF  MANU  1021 

•carriages:  let  him  pursue  fortune  till  death,  nor  ever  think  her  hard  to 
be  attained. 

138.  "Let  him  say  what  is  true,  but  let  him  say  what  is  pleasing;  let 
him  speak  no  disagreeable  truth,  nor  let  him  speak  agreeable  falsehood: 
this  is  a  primeval  rule. 

139.  "Let  him  say,  "'well  and  good,"  or  let  him  say,  "well,"  only;  but 
let  him  not  maintain  fruitless  enmity  and  altercation  with  any  man. 

140.  "Let  him  not  journey  too  early  in  the  morning  or  too  late  in  the 
evening,  nor  too  near  the  mid-day,  nor  with  an  unknown  companion, 
nor  alone,  nor  with  men  of  the  servile  class. 

141.  "Let  him  not  insult  those,  who  want  a  limb,  or  have  a  limb 
redundant,  who  are  unlearned,  who  are  advanced  in  age,  who  have  no 
beauty,  who  have  no  wealth,  or  who  are  of  an  ignoble  race. 

142.  "Let  no  priest,  unwashed  after  food,  touch  with  his  hand  a  cow, 
a  Brahman,  or  fire;  nor  being  in  good  health  and  unpurified,  let  him 
even  look  at  the  luminaries  in  the  firmament: 

143.  "But,  having  accidentally  touched  them  before  his  purification,  let 
him  ever  sprinkle  with  water,  in  the  palm  of  his  hand,  his  organs  of 
sensation,  all  his  limbs,  and  his  navel. 

159.  "Whatever  act  depends  on  another  man,  that  act  let  him  carefully 
shun;  but  whatever  depends  on  himself,  to  that  let  him  studiously  attend: 

160.  "All,  that  depends  on  another,  gives  pain;  and  all,  that  depends 
on  himself,  gives  pleasure;  let  him  know  this  to  be  in  few  words  the 
definition  of  pleasure  and  pain. 

161.  "When  an  act,  neither  prescribed  nor  prohibited,  gratifies  the  mind 
of  him  who  performs  it,  let  him  perform  it  with  diligence;  but  let  him 
avoid  its  opposite. 

162.  "Him,  by  whom  he  was  invested  with  the  sacrificial  thread,  him, 
who  explained  the  Veda  or  even  a  part  of  it,  his  mother,  and  his  father, 
natural  or  spiritual,  let  him  never  oppose;  nor  priests  nor  cows,  nor 
persons  truly  devout." 

The  following  rules  of  conduct  may  well  be  learned  and  observed  by 
all  men. 

171.  "Though  oppressed  by  penury,  in  consequence  of  his  righteous 
dealings,  let  him  never  give  his  mind  to  unrighteousness ;  for  he  may 
observe  the   speedy  overthrow  of   iniquitous   and  sinful   men. 

172.  "Iniquity,  committed  in  this  world,  produces  not  fruit  immediately, 
but,  like  the  earth,  in  due  season;  and,  advancing  by  little  and  little,  it 
eradicates  the  man  who  committed  it. 

173.  "Yes,  iniquity,  once  committed,  fails  not  of  producing  fruit  to  him, 
who  wrought  it;  if  not  in  his  own  person,  yet  in  his  sons;  or,  if  not  in 
his   sons,  yet  in  his   grandsons. 

174.  "He  grows   rich   for  a  while  through   unrighteousness;   then   he 


I022  APPENDIX 

beholds   good   things;   then   it   is,   that   he   vanquishes   his   foes;   but   he 
perishes  at  length  from  his  whole  root  upwards. 

175.  "Let  a  man  continually  take  pleasure  in  truth,  in  justice,  in  laudable 
practices,  and  in  purity;  let  him  chastise  those,  whom  he  may  chastise, 
in  a  legal  mode;  let  him  keep  in  subjection  his  speech,  his  arm,  and  his 
appetite : 

176.  "Wealth  and  pleasure,  repugnant  to  law,  let  him  shun;  and  even 
lawful  acts,  which  may  cause  future  pain,  or  be  offensive  to  mankind. 

177.  "Let  him  not  have  nimble  hands,  restless  feet,  or  voluble  eyes ;  let 
him  not  be  crooked  in  his  ways ;  let  him  not  be  flippant  in  his  speech,  nor 
intelligent  in  doing  mischief. 

178.  "Let  him  walk  in  the  path  of  good  man;  the  path,  in  which  his 
forefather  walked;  while  he  moves  in  that  path  he  can  give  no  offense. 

179.  "With  an  attendant  on  consecrated  fire,  a  performer  of  holy  rites, 
and  a  teacher  of  the  Veda,  with  his  maternal  uncle,  with  his  guest  or  a 
dependent,  with  a  child,  with  a  man  either  aged  or  sick,  with  a  physician,, 
with  his  paternal  kindred,  with  his  relations  by  marriage,  and  with  cousins 
on  the  side  of  his  mother, 

180.  "With  his  mother  herself,  or  with  his  father,  with  his  kinswomen, 
with  his  brother,  with  his  son,  his  wife,  or  his  daughter,  and  with  his 
whole  set  of  servants  let  him  have  no  strife. 

186.  "Though  permitted  to  receive  presents,  let  him  avoid  a  habit 
of  taking  them;  since,  by  taking  many  gifts,  his  divine  light  soon  fades. 

187.  "Let  no  man  of  sense,  who  has  not  fully  informed  himself  of  the 
law  concerning  gifts  of  particular  things,  accept  a  present,  even  though 
he  pine  with  hunger. 

188.  "The  man  who  knows  not  that  law,  yet  accepts  gold  or  gems, 
land,  a  horse,  a  cow,  food,  raiment,  oils  or  clarified  butter,  becomes  mere 
ashes,  like  wood  consumed  by  fire: 

189.  "Gold  and  gems  burn  up  his  nourishment  and  life;  land  and  a 
cow,  his  body;  a  horse,  his  eyes;  raiment,  his  skin;  clarified  butter,  his 
manly  strength ;  oils,  his  progeny. 

190.  "A  twice-born  man,  void  of  true  devotion,  and  not  having  read  the 
Veda,  yet  eager  to  take  a  gift,  sinks  down  together  with  it,  as  with  a 
boat  of  stone  in  deep  water. 

204.  "A  wise  man  should  constantly  discharge  all  the  moral  duties, 
though  he  performs  not  constantly  the  ceremonies  of  religion;  since  he 
falls  low,  if,  while  he  performs  ceremonial  acts  only,  he  discharge  not 
his  moral  duties." 

A  long  list  is  given  of  food  which  he  is  prohibited  from  eating,  some  for 
sanitary  reasons  and  others  because  of  contamination ;  thus  he  must  not 
eat  food  on  which  lice  have  fallen  or  that  has  been  designedly  touched 
by  the  foot  or  smelled  by  a  cow;  nor  the  food  of  knaves,  harlots,  public 


CODE  OF  MANU  1023 

singers,  a  eunoch,  insane,  wrathful,  or  sick  persons,  of  a  physician,  hunter, 
backbiter,  false  witness  or  a  blacksmith. 

222.  "Having  unknowingly  swallowed  the  food  of  any  such  person,  he 
must  fast  during  three  days ;  but,  having  eaten  it  knowingly,  he  must 
perform  the  same  harsh  penance,  as  if  he  had  tasted  any  seminal  impurity, 
ordure,  or  urine, 

236,  "Let  not  a  man  be  proud  of  his  rigorous  devotion;  let  him  not, 
having  sacrificed,  utter  a  falsehood;  let  him  not  though  injured,  insult  a 
priest;  having  made  a  donation,  let  him  never  proclaim  it. 

'^'Zl-  "By  falsehood,  the  sacrifice  becomes  vain;  by  pride,  the  merit 
of  devotion  is  lost;  by  insulting  priests,  life  is  diminished;  and  by  pro- 
claiming a  largess,  its  fruit  is  destroyed. 

238.  "Giving  no  pain  to  any  creature,  let  him  collect  virtue  by  degrees, 
for  the  sake  of  acquiring  a  companion  to  the  next  world,  as  the  white 
ant  by  degrees  builds  its  nest; 

239.  "For,  in  his  passage  to  the  next  world,  neither  his  father  nor  his 
mother,  nor  his  wife,  nor  his  son,  nor  his  kinsmen  will  remain  in  his 
company:  his  virtue  alone  will  adhere  to  him." 

Chapter  5  is  entitled,  "On  Diet,  Purification,  and  Women." 
A  long  list  of  prohibited  foods  is  given. 

19.  "The  twice-born  man  who  has  intentionally  eaten  a  mushroom,  the 
flesh  of  a  tame  hog,  or  a  town-cock,  a  leek,  or  an  onion,  or  garlick  is 
degraded  immediately. 

20.  "But  having  undesignedly  tasted  either  of  those  six  things,  he  must 
perform  the  penance  sdntapana,  or  the  chdndrdyana,  which  anchorets  prac- 
tice; for  other  things  he  must  fast  a  whole  day. 

21.  "One  of  those  harsh  penances,  called  prajdpatya,  the  twice-born  man 
must  perform  annually,  to  purify  him  from  the  unknown  taint  of  illicit 
food;  but  he  must  do  particular  penance  for  such  food  intentionally 
eaten." 

This  is  followed  by  a  list  of  foods  which  may  be  eaten. 

39.  "By  the  self-existing  in  person  were  beasts  created  for  sacrifice; 
and  the  sacrifice  was  ordained  for  the  increase  of  this  universe:  the 
slaughterer,  therefore,  of  beasts  for  sacrifice  is  in  truth  no  slaughterer. 

40.  "Gramineous  plants,  cattle,  timber  trees,  amphibious  animals,  and 
birds,  which  have  been  destroyed  for  the  sacrifice,  attain  in  the  next 
world  exalted  births. 

41.  "On  a  solemn  offering  to  a  guest,  at  a  sacrifice,  and  in  holy  rites 
to  the  manes  or  to  the  gods,  but  on  those  occasions  only,  may  cattle  be 
slain :  this  law  Manu  enacted. 

45.  "He,  who  injures  animals,  that  are  not  injurious,  from  a  wish  to 
give  himself  pleasure,  adds  nothing  to  his  own  happiness,  living  or  dead; 

46.  "While  he,   who  gives  no  creature  willingly  the  pain  of   confine- 


I024  APPENDIX 

ment  or   death,  but  seeks  the  good   of  all  sentient  beings,  enjoys  bliss 
without  end. 

58.  "When  a  child  has  teethed,  and  when,  after  teething,  his  head  has 
been  shorn,  and  when  he  has  been  grit  with  his  thread,  and  when,  being 
full  grown,  he  dies,  all  his  kindred  are  impure:  on  the  birth  of  a  child 
the  law  is  the  same. 

59.  "By  a  dead  body,  the  sapindas  are  rendered  impure  in  the  law  for 
ten  days,  or  until  the  fourth  day,  when  the  bones  have  been  gathered  up, 
or  for  three  days,  or  for  one  day  only,  according  to  the  qualities  of  the 
deceased. 

60.  "Now  that  the  relation  of  the  sapindas,  or  men  connected  by  the 
funeral  cake,  ceases  with  the  seventh  person,  or  in  the  sixth  degree  of 
ascent  or  descent,  and  that  of  samdnodacas,  or  those  connected  by  an 
€qual  oblation  of  water,  ends  only,  when  their  births  and  family  names 
are  no  longer  known." 

Rules  as  to  who  becomes  impure  from  the  death  of  relatives,  the  per- 
formance of  funeral  rites  and  other  circumstances  are  given  and  the 
manner  of  purification  prescribed. 

96.  "The  corporal  frame  of  a  king  is  composed  of  particles  from  Soma, 
Agni,  Sura,  Pavana,  Indra,  Cuvera,  Varuna,  and  Yama,  the  eight  guardian 
"deities  of  the  world. 

97.  "By  those  guardians  of  men  in  substance  is  the  king  pervaded, 
and  he  cannot  by  law  be  impure;  since  by  those  tutelar  gods  are  the 
purity  and  impurity  of  mortals  both  caused  and  removed. 

98.  "By  a  soldier,  discharging  the  duties  of  his  class,  and  slain  in  the 
field  with  brandished  weapons,  the  highest  sacrifice  is,  in  that  instant 
complete;  and  so  is  his  purification;  this  law  is  fixed. 

99.  "A  priest,  having  performed  funeral  rites,  is  purified  by  touching 
water;  a  soldier,  by  touching  his  horse  or  elephant,  or  his  arms;  a 
husbandman,  by  touching  'his  goad,  or  the  halter  of  his  cattle;  a  servant, 
ty  touching  his   staflf. 

105.  "Sacred  learning,  austere  devotion,  fire,  holy  aliment,  earth,  the 
mind,  water,  smearing  with  cow-dung,  air,  prescribed  acts  of  religion,  the 
sun  and  time,  are  purifiers  of  embodied  spirits ; 

106.  "But  of  all  pure  things,  purity  in  acquiring  wealth,  is  pronounced 
the  most  excellent;  since  he,  who  gains  wealth  with  clean  hands,  is  truly 
pure;  not  he  who  is  purified  merely  with  earth  and  water, 

107.  "By  forgiveness  of  injuries,  the  learned  are  purified;  by  liberality, 
those  who  have  neglected  their  duty;  by  pious  meditation,  those  who 
have  secret  faults;  by  devout  austerity,  those  who  best  know  the  Veda." 

After  this   follow  rules   for  the  purification  of  inanimate  things   with 
water,  ashes,  earth,  fire  and  in  various  ways. 
129.    "The  hand  of  an  artist  employed  in  his  art  is  always   pure;   so 


CODE  OF  MANU  1025 

is  every  vendible  commodity,  when  exposed  to  sale;  and  that  food  is 
always  clean,  which  a  student  in  theology  has  begged  and  received;  such 
is    the    sacred    rule. 

147.  "By  a  girl,  or  by  a  young  woman,  or  by  a  woman  advanced  in 
years,  nothing  must  be  done  even  in  her  own  dwelling  place,  according 
to  her  mere  pleasure.  * 

148.  "In  childhood  must  a  female  be  dependent  on  her  father;  in 
youth,  on  her  husband;  her  lord  being  dead,  on  her  sons;  if  she  have 
no  sons,  on  the  near  kinsmen  of  her  husband;  if  he  left  no  kinsmen,, 
on  those  of  her  father;  if  she  have  no  paternal  kinsmen,  on  the 
sovereign;  a  woman  must  never  seek  independence. 

149.  "Never  let  her  wish  to  separate  herself  from  her  father,  her  hus~ 
band,  or  her  sons;  for,  by  a  separation  from  them,  she  exposes  both 
families  to  contempt. 

150.  "She  must  always  live  with  a  cheerful  temper,  with  good  manage- 
ment in  the  affairs  of  the  house,  with  great  care  of  the  household 
furniture,  and  with  a  frugal  hand  in  all  her  expenses. 

151.  "Him,  to  whom  her  father  has  given  her,  or  her  brother  with 
the  paternal  assent,  let  her  obsequiously  honour,  while  he  lives;  and,, 
when  he  dies,  let  her  never  neglect  him, 

152.  "The  recitation  of  holy  texts,  and  the  sacrifice  ordained  by  the 
lord  of  creatures,  are  used  in  marriages  for  the  sake  of  procuring  good 
fortune  to  brides;  but  the  first  gift,  or  troth  plighted,  by  the  husband,, 
is  the  primary  cause  and  origin  of  marital  dominion. 

153-  "When  the  husband  has  performed  the  nuptial  rites  with  texts 
from  the  Veda,  he  gives  bliss  continually  to  his  wife  here  below,  both 
in  season  and  out  of  season;  and  he  will  give  her  happiness  in  the  next 
world. 

154.  "Though  inobservant  of  approved  usages,  or  enamored  of  another 
woman,  or  devoid  of  good  qualities,  yet  a  husband  must  constantly  be 
revered  as  a  god  by  a  virtuous  wife. 

155.  "No  sacrifice  is  allowed  to  women  apart  from  their  husbands, 
no  religious  rite,  no  fasting ;  as  far  only  as  a  wife  honours  her  lord,  so  far 
she    is    exalted   in   heaven. 

156.  "A  faithful  wife,  who  wishes  to  attain  in  heaven  the  mansion 
of  her  husband,  must  do  nothing  unkind  to  him,  be  he  living  or  dead. 

157.  "Let  her  emaciate  her  body,  by  living  voluntarily  on  pure  flowers, 
roots,  and  fruit ;  but  let  her  not,  when  her  lord  is  deceased,  even  pronounce 
the  name  of  another  man. 

158.  "Let  her  continue  till  death  forgiving  all  injuries,  performing 
harsh  duties,  avoiding  every  sensual  pleasure,  and  cheerfully  practising 
the  incomparable  rules  of  virtue,  which  have  been  followed  by  such 
women,  as  were  devoted  to  one  only  husband. 

159.  "Many  thousands  of  Brahmans,  having  avoided  sensuality  from 


I026  APPENDIX 

their  early  youth,  and  having  left  no  issue  in  their  families,  have 
ascended,  nevertheless,  to  heaven;  • 

i6o.  "And,  like  those  abstemious  men,  a  virtuous  wife,  ascends  to 
heaven,  though  she  have  no  child,  if,  after  the  decease  of  her  lord, 
she  devote  herself  to  pious  austerity: 

i6i.  "But,  a  widow,  who,  from  a  wish  to  bear  children,  slights  her 
deceased  husband  by  marrying  again,  brings  disgrace  on  herself  here 
below,  and  shall  be  excluded  from  the  seat  of  her  lord. 

162.  "Issue,  begotten  on  a  woman  by  any  one  other  than  her  husband, 
is  here  declared  to  be  no  progeny  of  hers;  no  mote  than  a  child  begotten 
on  the  wife  of  another  man,  belongs  to  the  begetter:  nor  is  a  second 
husband  allowed,  in  any  part  of  this  code,  to  a  virtuous  woman. 

167.  "A  twice-born  man  versed  in  sacred  ordinances,  must  burn,  with 
hallowed  fire  and  fir  implements  of  sacrifice,  his  wife  dying  before  him, 
if  she  was  of  his  own  class,  and  lived  by  these  rules : 

168.  "Having  thus  kindled  sacred  fires,  and  performed  funeral  rites 
to  his  wife,  who  died  before  him,  he  may  marry  again,  and  again  light 
the  nuptial  fire." 

Chapter  6  is  entitled,  "On  Devotion;  or  on  the  Third  and  Fourth 
Orders." 

2.  "When  the  father  of  a  family  perceives  his  muscles  become  flaccid 
and  his  hair  gray,  and  sees  the  child  of  his  child,  let  him  then  seek 
refuge  in  a  forest: 

3.  "Abandoning  all  food  eaten  in  towns,  and  all  his  household  utensils, 
let  him  repair  to  the  lonely  woods,  committing  the  care  of  his  wife  to 
her  sons ;   or  accompanied  by  her,  if   she  choose  to  attend  him. 

5.  "Let  him  take  up  consecrated  fire,  and  all  his  domestic  imple- 
ments, of  making  oblations  to  it,  and,  departing  from  the  town  to  the 
forest,  let  him  dwell  in  it  with  complete  power  over  his  organs  of 
sense  and  of  action. 

5.  "With  many  sorts  of  pure  food,  such  as  holy  sages  used  to  eat, 
with  green  herbs,  roots,  and  fruit,  let  him  perform  the  five  great  sacra- 
ments  before   mentioned,   introducing  them   with   due   ceremonies. 

6.  "Let  him  wear  a  black  antelope  hide,  or  a  vesture  of  bark;  let 
him  bathe  evening  and  morning;  let  him  suffer  the  hairs  of  his  head, 
his  beard,  and  his  nails  to  grow  continually, 

7.  "From  such  food,  as  himself  may  eat,  let  him,  to  the  utmost  of 
his  power,  make  offerings  and  give  alms;  and  with  presents  of  water, 
roots,  and  fruit,  let  him  honour  those  who  visit  his  hermitage. 

8.  "Let  him  be  constantly  engaged  in  reading  the  Veda ;  patient  of 
all  extremities,  universally  benevolent,  with  a  mind  intent  on  the  Supreme 
Being;  a  perpetual  giver,  but  no  receiver  of  gifts;  with  tender  affection 
for  all  animated  bodies. 

9.  "Let   him,   as   the   law   directs,   make   oblations   on   the  hearth   with 


CODE  OF  MANU  1027 

three    sacred    fires ;    not    omitting    in    due    time    the    ceremonies    to    be 
performed  at  the  conjunction  and  opposition  of  the  moon. 

10.  "Let  him  also  perform  the  sacrifices  ordained  in  honor  of  the 
lunar  constellations,  make  the  prescribed  offering  of  new  grain,  and 
solemnize  holy  rites  every  four  months,  and  at  the  winter  and  summer 
solstices. 

13.  "Let  him  eat  green  herbs,  flowers,  roots,  and  fruit,  that  grow 
on  earth  or  in  water,  and  the  productions  of  pure  trees,  and  oils  formed 
in  fruits. 

14.  "Honey  and  fresh  meat  he  must  avoid,  and  all  sorts  of  mushrooms, 
the  plant  bhustrlna,  that  named  sigruca,  and  the  fruit  of  the  sleshmataca. 

16.  "Let  him  not  eat  the  produce  of  ploughed  land,  though  abandoned 
by  any  man,  who  owns  it,  nor  fruit  and  roots  produced  in  a  town,  even 
though  hunger  oppress  him. 

22.  "Let  him  slide  backwards  and  forwards  on  the  ground;  or  let  him 
stand  a  whole  day  on  tip  toe;  or  let  him  continue  in  motion  rising  and 
sitting  alternatively;  but  at  sunrise,  at  noon,  and  at  sunset,  let  him  go 
to  the  waters  and  bathe. 

23.  "In  the  hot  season,  let  him  sit  exposed  to  five  fires,  four  blazing 
around  him  with  the  sun  above;  in  the  rains,  let  him  stand  uncovered, 
without  even  a  mantle,  where  the  clouds  pour  the  heaviest  showers ;  in 
the  cold  season  let  him  wear  humid  vesture;  and  let  him  increase  by 
degrees  the  austerity  of  his  devotion: 

24.  "Performing  his  ablution  at  the  three  Savanas,  let  him  give  satis- 
faction to  the  manes  and  to  the  gods ;  and,  enduring  harsher  and  harsher 
mortifications,  let  him  dry  up  his  bodily  frame. 

25.  "Then,  having  deposited  his  holy  fires,  as  the  law  directs,  in  his 
mind,  let  him  live  without  external  fire,  without  a  mansion,  wholly  silent, 
feeding  on  roots  and  fruit; 

26.  "Not  solicitous  for  the  means  of  gratifications,  chaste  as  a  student, 
sleeping  on  the  bare  earth,  in  the  haunts  of  pious  hermits,  without  one 
selfish   affection,   dwelling  on   roots  of  trees. 

27.  "From  devout  Brahmans  let  him  receive  alms  to  support  life,  or 
from  other  housekeepers  of  twice-born  classes,  who  dwell  in  the  forests : 

28.  "Or  the  hermit  may  bring  food  from  a  town,  having  received 
it  in  a  basket  of  leaves,  in  his  naked  hand,  or  in  a  postsherd;  anjd  then 
let  him  swallow  eight  mouthfuls. 

32.  "A  Brahman,  having  shuffled  off  his  body  by  any  of  those  modes, 
which  great  sages  practised,  and  becoming  void  of  sorrow  and  fear, 
rises  in  exaltation  in  the  divine  essence. 

SS.  "Having  thus  performed  religious  acts  in  a  forest  during  the 
third  portion  of  his  life,  let  him  become  a  Sannydsi  for  the  fourth  portion 
of  it,  abandoning  all  sensual  affections,  and  wholly  reposing  in  the 
Supreme   Spirit : 


I028  APPENDIX 

34.  "The  man,  who  has  passed  from  order  to  order,  has  made  oblations 
to  fire  on  his  respective  changes  of  state,  and  has  kept  his  members 
in  subjection,  but,  tired  with  so  long  a  course  of  giving  alms  and  making 
offerings,  thus  reposes  himself  entirely  on  God,  s:hall  be  raised  after 
death  to   Glory. 

44.  "An  earthen  water  pot,  the  roots  of  large  trees,  coarse  vesture,, 
total  solitude,  equanimity  toward  all  creatures,  these  are  the  characteristics 
of  a  Brahman  set  free. 

45.  "Let  him  not  wish  for  death;  let  him  not  wish  for  life;  let  him 
expect  his  appointed  time,  as  a  hired  servant  expects   his  wages. 

46.  "Let  him  advance  his  foot  purified  by  looking  down,  lest  he  touch 
anything  impure;  let  him  drink  water  purified  by  straining  with  a  cloth,, 
lest  he  hurt  some  insect;  let  hini,  if  he  chuse  to  speak,  utter  words, 
purified  by  truth;  let  him  by  all  means  keep  his  heart  purified. 

47.  "Let  him  bear  a  reproachful  speech  with  patience ;  let  him  speak 
reproachfully  to  no  man;  let  him  not,  on  account  of  his  frail  and 
feverish   body,   engage   in   hostility   with   any  one   living. 

48.  "With  an  angry  man  let  him  not  in  his  turn  be  angry;  abused, 
let  him  speak  mildly;  nor  let  him  utter  a  word  relating  to  vain  illusory 
things  and  confined  within  seven  gates,  the  five  organs  of  sense,  the 
chart  and  the  intellect;  or  this  world  with  three  above  and  three  below  it. 

49.  "Delighted  with  meditating  on  the  Supreme  Spirit,  sitting  fixed 
in  such  meditation,  without  needing  anything  earthly,  without  one  sensual 
desire,  without  any  companion  but  his  own  soul,  let  him  live  in  this 
world   seeking  the   bliss   of   the   next. 

'j2.  "Let  him  thus,  by  such  suppressions  of  breath,  burn  away  his 
offenses;  by  reflecting  intensely  on  the  steps  of  ascent  to  beatitude,  let 
him  destroy  sin;  by  coercing  his  members,  let  him  restrain  all  sensual 
attachments;  by  meditating  on  the  intimate  union  of  his  own  soul  and 
the  divine  essence,  let  him  extinguish  all  qualities  repugnant  to  the 
nature  of  God. 

75.  "By  injuring  nothing  animated,  by  subduing  all  sensual  habits,  by- 
devout  rites  ordained  in  the  Veda,  and  by  rigorous  mortifications,  men 
obtain,  even  in  this  life,  the  state  of  beatitude. 

'](i.  "A  mansion  with  bones  for  its  rafters  and  beams;  with  nerves- 
and  tendons,  for  cords;  with  muscles  and  blood,  for  mortar;  with  skin 
for  its  outward  covering;  filled  with  no  sweet  perfume,  but  loaded  with 
feces  and  urine; 

yy.  "A  mansion  infested  by  age  and  by  sorrow,  the  seat  of  malady, 
harassed  with  pains,  haunted  with  the  quality  of  darkness,  and  incapable 
of  standing  alone;  such  a  mansion  of  the  vital  soul  let  its  occupier 
always  cheerfully  quit: 

78.  "As  a  tree  leaves  the  bank  of  a  river,  when  it  falls  in,  or  as  a 
bird   leaves  the  branch   of  a  tree   at  his   pleasure,  thus  he,   who   leaves. 


CODE  OF  MANU  1029 

his  body  by  necessity  or  by  legal  choice,  is  delivered  from  the  ravening 
shark,  or  crocodile,  of  the  world. 

79.  "Letting  his  good  acts  descend  (by  the  law  of  the  Veda)  to  those, 
who  love  him,  and  his  evil  deeds,  to  those,  who  hate  him,  he  may  attain, 
through  devout  meditation,  the  eternal  spirit. 

87.  "The  student,  the  married  man,  the  hermit,  and  the  anchorite  are 
the  offspring,  though  in  four  orders,  of  married  men  keeping  house. 

88.  "And  all,  or  even  any,  of  those  orders,  assumed  in  their  turn, 
according  to  the  sacred  ordinances,  lead  the  Brahman,  who  acts  by 
the  preceding  rules,  to  the  highest  mansion : 

89.  "But  of  all  those,  the  housekeeper,  observing  the  regulations  of 
the  Srtiti  and  Smriti,  may  be  called  the  chief;  since  he  supports  the  three 
other  orders. 

90.  "As  all  rivers,  female  and  male,  run  to  their  determined  places 
in  the  sea,  thus  men  of  all  other  orders,  repair  to  their  fixed  place  in 
the  mansion  of  the  house-keeper. 

91.  "By  Brahmans,  placed  in  these  four  orders,  a  tenfold  system 
of  duties  must  ever  be  sedulously  practiced. 

92.  "Content,  returning  good  for  evil,  resistance  to  sensual  appetites, 
abstinence  from  illicit  gain,  purification,  coercion  of  the  organs,  knowledge 
of  scripture,  knowledge  of  the  Supreme  Spirit,  veracity,  and  freedom 
from  wrath,  form  their  tenfold  system  of  duties. 

93.  "Such  Brahmans,  as  attentively  read  the  ten  precepts  of  duty  and 
after  reading,  carefully  practice  them,  attain  the  most  exalted  condition. 

94.  "A  Brahman,  having  practiced,  with  organs  under  command,  this 
tenfold  system  of  duty,  having  heard  the  Upanishads  explained,  as  the 
law  directs,  and  who  has  discharged  his  three  debts,  may  become  an 
anchorite,  in  the  house  of  his  son,  according  to  the  Veda ; 

95.  "And,  having  abandoned  all  ceremonial  acts,  having  expiated  al! 
his  oft'enses,  having  obtained  a  command  over  his  organs,  and  having: 
perfectly  understood  the  scripture,  he  may  live  at  his  ease,  while  the 
household  affairs  are  conducted  by  his   son." 

Chapter  7  is  entitled,  "On  Government,  and  Public  Law ;  or  on  the 
Military  Class.  The  spirit  of  this  chapter  will  be  found  to  differ  materially 
from  that  of  prior  ones.  It  deals  with  the  practical  problems  of 
government  by  a  king. 

2.  "By  a  man  of  the  military  class,  who  has  received  in  due  form 
the  investiture  which  the  Veda  prescribes,  great  care  must  be  used  to 
maintain  the  whole  assemblage  of  laws. 

3.  "Since,  if  the  world  has  no  king,  it  would  quake  on  all  sides 
through  fear,  the  ruler  of  this  universe,  therefore,  created  a  king,  for 
the  maintenance  of  this  system,  both  religious  and  civil, 

4.  "Forming   him   of   eternal   particles    drawn    from   the   substance   of 


I030  APPENDIX 

Indra,    Pavana,   Yama,    Surya,   of    Agni,   and   Varuna,   of    Chandra   and 
Cuvera : 

5.  "And  since  a  king  was  composed  of  particles  drawn  from  those 
chief   guardian   deities,    he   consequently    surpasses   all    mortals    in   glory. 

6.  "Like  the  sun,  he  burns  eyes  and  hearts;  nor  can  any  human  creature 
on  earth  even  gaze  on  him. 

7.  "He  is  fire  and  air;  he,  both  sun  and  moon;  he,  the  god  of  criminal 
justice;  he,  the  genius  of  wealth;  he,  the  regent  of  waters;  he,  the  lord 
of  the  firmament. 

8.  "A  king,  even  though  a  child,  must  not  be  treated  lightly,  from  an 
idea  that  he  is  a  mere  mortal:  no,  he  is  a  powerful  divinity,  who  appears 
in  a  human  shape. 

9.  "Fire  burns  only  one  person,  who  carelessly  goes  too  near  it ;  but 
the  fire  of  a  king  in  wrath  burns  a  whole  family,  with  all  their  cattle 
and    goods. 

10.  "Fully  considering  the  business  before  him,  his  own  force,  and  the 
place,  and  the  time,  he  assumes  in  succession  all  sorts  of  forms,  for  the 
sake  of  advancing  justice. 

11.  "He,  sure,  must  be  the  perfect  essence  of  majesty,  by  whose  favor 
Abundance  rises  on  her  lotos,  in  whose  valour  dwells  conquest;  in  whose 
anger,  death. 

12.  "He,  who  shews  hatred  of  the  king,  through  delusion  of  mind, 
will  certainly  perish,  for  speedily  will  the  king  apply  his  heart  to  the  man's 
perdition. 

13.  "Let  the  king  prepare  a  just  compensation  for  the  good  and  a 
a  just  punishment  for  the  bad:  the  rule  of  strict  justice  let  him  never 
transgress. 

14.  "For  his  use  Brahma  formed  in  the  beginning  of  time  the  genius 
of  punishment,  with  a  body  of  pure  light,  his  own  son,  even  abstract 
criminal  justice,  the  protector  of  all  created  things. 

15.  "Through  fear  of  that  genius,  all  sentient  bemgs,  whether  fixed 
or  locomotive,  are  fitted  for  natural  enjoyments  and  swerve  not  for  duty. 

16.  "When  the  king,  therefore,  has  fully  considered  place  and  time, 
and  his  own  strength,  and  the  divine  ordinance,  let  him  justly  inflict 
punishment  on  all  those,  who  act  unjustly. 

17.  "Punishment  is  an  active  ruler,  he  is  the  true  manager  of  public 
affairs ;  he  is  the  dispenser  of  laws ;  and  wise  men  call  him  the  sponsor 
of  all  the  four  orders  for  the  discharge  of  their  several  duties. 

18.  "Punishment  governs  all  mankind ;  punishment  alone  preserves 
them ;  punishment  wakes,  while  their  guards  are  asleep ;  the  wise  consider 
punishment  as  the   perfection   of   justice. 

19.  "When  rightly  and  considerately  inflicted,  it  makes  all  the  people 
happy;  but,  inflicted  without  full  consideration,  it  wholly  destroys  them  all. 

26.    "Holy  sages   consider  as  a   fit   dispenser  of   criminal  justice,   that 


CODE  OF  MANU  1031 

king,  who  invariably  speaks  truth,  who  duly  considers  all  cases,  who 
understands  the  sacred  books,  who  knows  the  distinction  of  virtue, 
pleasure,  and  riches ; 

2^.  "Such  a  king,  if  he  justly  inflict  legal  punishments,  greatly  in- 
creases those  three  means  of  happiness;  but  punishment  itself  shall 
destroy  a  king,  who  is  crafty,  voluptuous,  and  wrathful; 

28.  "Criminal  justice,  the  bright  essence  of  majesty,  and  hard  to  be 
supported  by  men  with  unimproved  minds,  eradicates  a  king,  who  swerves 
from  his  duty,  together  with  all  his  race : 

29.  "Punishment  shall  overtake  his  castles,  his  territories,  his  peopled 
land,  with  all  fixed  and  movable  things,  that  exist  on  it:  even  the  gods 
and  the  sages,  who  lose  their  oblations,  will  be  afflicted  and  ascend  to 
the   sky. 

30.  "Just  punishment  cannot  be  inflicted  by  an  ignorant  and  covetous 
king,  who  has  no  wise  and  virtuous  assistant,  whose  understanding  has 
not  been  improved,  and  whose  heart  is  addicted  to  sensuality : 

31.  "By  a  king,  wholly  pure,  faithful  to  his  promise,  observant  of  the 
scriptures,  with  good  assistants  and  sound  understanding,  may  punishment 
be    justly   inflicted. 

-i^^.  "Let  him  in  his  own  domains  act  with  justice,  chastise  foreign 
foes  with  rigour,  behave  without  duplicity  to  his  affectionate  friends, 
and  with  lenity  to  Brahmans. 

2^"].  "Let  the  king,  having  risen  at  early  dawn,  respectfully  attend  to 
Brahmans,  learned  in  the  three  Vedas,  and  in  the  science  of  ethics ;  and 
by  their  decision  let  him  abide. 

38.  "Constantly  must  he  show  respect  to  Brahmans,  who  have  grown 
old,  both  in  years  and  in  piety,  who  know  the  scriptures,  who  in  body 
and  mind  are  pure ;  for  he,  who  honours  the  aged,  will  perpetually  be 
honoured  even  by  cruel  demons: 

39.  "From  them,  though  he  may  have  acquired  modest  behavior  by 
his  own  good  sense  and  by  study,  let  him  continually  learn  habits  of 
rriodesty  and  composure ;  since  a  king,  whose  demeanor  is  humble  and 
composed,  never  perishes, 

40.  "While  through  want  of  such  humble  virtue,  many  kings  have 
perished  with  all  their  possessions,  and,  through  virtue  united  with 
modesty,  even   hermits   have  obtained  kingdoms. 

43.  "From  those,  who  know  the  three  Vedas,  let  him  learn  the  triple 
doctrine  comprised  in  them,  together  with  the  primeval  science  of  criminal 
justice  and  sound  policy,  the  systean  of  logic  and  metaphysics,  and 
sublime  theological  truths;  from  the  people  he  must  learn  the  theory  of 
agriculture,  commerce,  and  other  practical  arts. 

44.  "Day  and  night  must  he  strenuously  exert  himself  to  gain  complete 
victory  over  his  own  organs;  since  that  king  alone  whose  organs  are 
completely  subdued,  can  keep  his  people  firm  to  their  duty. 


I032  APPENDIX 

45.  "With  extreme  care  let  him  shun  eighteen  vices,  ten  proceeding 
from  love  of  pleasure,  eight  springing  from  wrath,  and  all  ending  in 
misery. 

46.  "Since  a  king,  addicted  to  vices  arising  from  love  of  pleasure  must 
lose  both  his  wealth  and  his  virtue,  and,  addicted  to  vices  arising  from 
anger,  he  may  lose  even  his  life  from  the  public  resentment. 

47.  "Hunting,  gaming,  sleeping  by  day,  censuring  rivals,  excesses  with 
woman,  intoxication,  singing,  instrumental  music,  dancing,  and  useless 
travel,  are  the  tenfold  set  of  vices  produced  by  love  of  pleasure: 

48.  "Talebearing,  violence,  insiduous  wounding,  envy,  detraction,  unjust 
seizure  of  property,  reviling,  and  open  assault  are  in  like  manner  the 
eightfold  set  of  vices,  to  which  anger  gives  birth. 

54.  "The  king  must  appoint  seven  or  eight  ministers,  who  must  be 
sworn  by  touching  a  sacred  image  and  the  like;  men,  whose  ancestors 
were  servants  of  kings ;  who  are  versed  in  the  holy  books ;  who  are 
personally  brave;  who  are  skilled  in  the  use  of  weapons;  and  whose 
lineage  is  noble. 

56.  "Let  him  perpetually  consult  with  those  ministers  on  peace  and 
war,  on  his  forces,  on  his  revenues,  on  the  protection  of  his  people,  and 
on  the  means  of  bestowing  aptly  the  wealth  which  he  has  acquired : 

57.  "Having  ascertained  the  several  opinions  of  his  counsellors  first 
apart  and  then  collectively,  let  him  do  what  is  most  beneficial  for  him 
in  publick  affairs. 

58.  "To  one  learned  Brahman,  distinguished  among  them  all,  let  the 
king  impart  his  momentous  counsel,  relating  to  six  principal  articles. 

59.  "To  him,  with  full  confidence,  let  him  intrust  all  transactions; 
and  with  him,  having  taken  his  final  resolution,  let  him  begin  all  his 
measures. 

61.  "As  many  officers  as  the  due  performance  of  his  business  requires, 
not  slothful  men,  but  active,  able,  and  well  instructed,  so  many  and  no 
more,  let  him  appoint. 

63.  "Let  him  likewise  appoint  an  ambassador  versed  in  all  the  Sdstras, 
who  understands  hints,  external  signs,  and  actions,  whose  hand  and  heart 
are  pure,  whose  abilities  are  great  and  whose  birth  was  illustrious. 

64.  "That  royal  ambassador  is  applauded  most,  who  is  generally  be- 
loved, pure  within  and  without,  dexterous  in  business,  and  endued  with 
an  excellent  memory;  who  knows  countries  and  times,  is  handsome, 
intrepid,  and  eloquent. 

65.  "The  forces  of  the  realm  must  be  immediately  regulated  by  the 
commander  in  chief;  the  actual  infliction  of  punishment,  by  the  officers 
of  criminal  justice;  the  treasury  and  the  country,  by  the  king  himself; 
peace  and  war,  by  the  ambassador. 

88.  "Never  to  recede  from  combat,  to  protect  the  people,  and  to 
honour  the  priest,  is  the  highest  duty  of  kings  and  insures  their  felicity. 


CODE  OF  MANU  1033 

89.  "Those  rulers  of  the  earth,  who,  desirous  of  defeating  each  other, 
exert  their  utmost  strength  in  battle,  without  ever  averting  their  faces, 
ascend  after  death  directly  to  heaven. 

90.  "Let  no  man,  engaged  in  combat,  smite  his  foe  with  sharp  weapons 
concealed  in  wood,  nor  with  arrows  mischievously  barbed,  nor  with 
poisoned    arrows,    nor    with    darts    blazing    with    fire; 

91.  "Nor  let  him  in  a  car  or  on  horseback  strike  his  enemy  alighted 
on  the  ground;  nor  an  effeminate  man;  nor  one,  who  sues  for  life  with 
closed  palms;  nor  one,  whose  hair  is  loose  and  obstructs  his  sight;  nor 
one  who  sits   down   fatigued;  nor  one  who  says,  "I   am  thy  captive;" 

92.  "Nor  one,  who  sleeps;  nor  one,  who  has  lost  his  coat  of  mail; 
nor  one,  who  is  naked;  nor  one,  who  is  disarmed;  nor  one,  who  is 
a  spectator;  but  not  a  combatant;  nor  one,  who  is  fighting  with  another 
man. 

93.  "Calling  to  mind  the  duty  of  honourable  men,  let  him  never  slay 
one,  who  has  broken  his  weapon;  nor  one,  who  is  afflicted  with  private 
sorrow ;  nor  one,  who  has  been  grievously  wounded ;  nor  one,  who  is 
terrified;    nor    one,    who    turns    his    back. 

94.  "The  soldier  indeed,  who  fearing  and  turning  his  back,  happens 
to  be  slain  by  his  foes  in  an  engagement,  shall  take  upon  himself  all  the 
sin  of  his  commander,  whatever  it  be. 

95.  "And  the  commander  shall  take  to  himself  the  fruit  of  all  the 
good  conduct,  which  the  soldier,  who  turns  his  back  and  is  killed,  had 
previously  stored  up  for  a  future  life. 

96.  "Cars,  horses,  elephants,  umbrellas,  habiliments,  except  the  jewels 
which  may  adorn  them,  grain,  cattle,  women,  all  sorts  of  liquids  and 
metals,  except  gold  and  silver,  are  the  lawful  prizes  of  the  man  who 
takes  them  in  war; 

97.  "But  of  those  prizes,  the  captors  must  lay  the  most  valuable 
before  the  king;  such  is  the  rule  in  the  Veda  concerning  them;  and 
the  king  should  distribute  among  the  whole  army  what  has  not  been 
separately  taken." 

Rules  to  be  learned  in  preparing  for  war  are  then  given : 

107.  "When  he  thus  has  prepared  himself  for  conquest,  let  him  re- 
duce all  opposers  to  submission  by  negotiation  and  three  other  expedients, 
namely,  presents,  division,  and  force  of  arms: 

108.  "If  they  cannot  be  restrained  by  the  three  first  methods,  then 
let  him,  firmly  but  gradually,  bring  them  to  subjection  by  military  force. 

109.  "Among  those  four  modes  of  obtaining  success,  the  wise  prefer 
negotiation    and    war    for   the   exaltation    of    kingdoms. 

no.  "As  a  husbandman  plucks  up  weeds  and  preserves  his  corn,  thus 
let  a  king  destroy  his  opponents  and  secure  his  people. 

III.    "That  king,  who,  through  weakness  of  intellect,  rashly  oppresses 


I034  APPENDIX 

his  people,  will,  together  with  his  family,  be  deprived  both  of  kingdom 
and  life. 

114.  "Let  him  place,  as  the  protectors  of  his  realm,  a  company  of 
guards,  commanded  by  an  approved  officer,  over  two,  three,  five,  or 
a  hundred  districts,  according  to  their  extent. 

115.  "Let  him  appoint  a  lord  of  one  town  with  its  district,  a  lord  of 
ten  towns,  a  lord  of  twenty,  a  lord  of  a  hundred,  and  a  lord  of  a 
thousand. 

116.  "Let  the  lord  of  one  town  certify  of  his  own  accord  to  the 
lord  of  ten  towns  any  robberies,  tumults,  or  other  evils,  which  arise 
in  his  district,  and  which  he  cannot  suppress;  and  the  lord  of  ten,  to 
the  lord  of  twenty: 

117.  "Then  let  the  lord  of  twenty  towns  notify  them  to  the  lord 
of  a  hundred;  and  let  the  lord  of  a  hundred  transmit  the  information 
himself  to  the  lord  of  a  thousand  townships. 

118.  "Such  food,  drink,  wood,  and  other  articles,  as  by  law  should  be 
given  each  day  to  the  king  by  the  inhabitants  of  the  township,  let  the 
lord  of  one  tawn   receive   as   his   perquisite: 

119.  "Let  the  lord  of  ten  towns  enjoy  the  produce  of  two  ploughlands, 
or  as  much  ground  as  can  be  tilled  with  two  ploughs,  each  drawn  by 
six  bulls ;  the  lord  of  twenty  that  of  ten  ploughlands ;  the  lord  of  a 
hundred,  that  of  a  village  or  small  town;  the  lord  of  a  thousand  that 
of  a  large  town. 

120.  "The  affairs  of  those  townships,  either  jointly  or  separately  trans- 
acted, let  another  minister  of  the  king  inspect ;  who  should  be  well 
affected  and  by  no  means  remiss, 

121.  "In  every  large  town  or  city,  let  him  appoint  one  superintendent 
of  all  affairs,  elevated  in  rank,  formidable  in  power,  distinguished  as  a 
planet  among  stars : 

122.  "Let  that  governor  from  time  to  time  survey  all  the  rest  in 
person,  and,  by  means  of  his  emissaries,  let  him  perfectly  know  their 
conduct  in  their  several  districts. 

123.  "Since  the  servants  of  the  king,  whom  he  has  appointed  guardians 
of  districts,  are  generally  knaves,  who  seize  what  belong  to  other  men, 
from   such .  knaves  let  him   defend  his  people : 

124.  "Of  such  evil-minded  servants,  as  wring  wealth  from  subjects 
attending  them  on  business,  let  the  king  confiscate  all  the  possessions, 
and  banish  them  from  his  realm. 

125.  "For  women,  employed  in  the  service  of  the  king,  and  for  his 
whole  set  of  menial  servants,  let  him  daily  provide  a  maintenance,  in 
proportion  to  their  station  and  to  their  work : 

126.  "One  pana  of  copper  must  be  given  each  day  as  wages  to  the 
lowest  servant,  with  two  cloths  for  apparel  every  half-year,  and  a 
drdna  of  grain  every  month;  to  the  highest  must  be  given  wages  in  the 
ratio  of   six  to  one. 


CODE  OF  MANU  1035 

127.  "Having  ascertained  the  rates  of  purchase  and  sale,  the  length 
of  the  way,  the  expenses  of  food  and  condiments,  the  charges  of  securing 
the  goods  carried,  and  the  neat  profits  of  trade,  let  the  king  oblige 
traders  to  pay  taxes  on  their  saleable  commodities. 

128.  "After  a  full  consideration,  let  the  king  so  levy  those  taxes 
continually  in  his  dominions,  that  both  he  and  the  merchant  may  receive 
a  just  compensation  for  their  several  acts. 

129.  "As  the  leech,  the  suckling  calf,  and  the  bee,  take  their  natural 
food  by  little  and  little,  thus  must  the  king  draw  from  his  kingdom 
an  annual  revenue. 

130.  "Of  cattle,  of  gems,  of  gold  and  silver,  added  each  year  to  the 
capital  stock,  a  fiftieth  part  may  be  taken  by  the  king;  of  grain  an  eighth 
part,  a  sixth,  or  a  twelfth,  according  to  the  difference  of  the  soil,  and 
the  labour  necessary  to  cultivate  it. 

131.  **He  may  also  take  a  sixth  part  of  the  clear  annual  increase  of 
trees,  flesh-meat,  honey,  clarified  butter,  perfumes,  medical  substances, 
liquids,  flowers,  roots,  and  fruit; 

132.  "Of  gathered  leaves,  potherbs,  grass,  utensils,  made  with  leather 
or  cane,  earthen  pots,  and  all  things  made  of  stone. 

133-  "A  king  even  though  dying  with  want,  must  not  receive  any  tax 
from  a  Brahman  learned  in  the  Vedas,  nor  suffer  such  a  Brahman, 
residing  in  his  territories,  to  be  afflicted  with  hunger. 

149.  "At  the  time  of  consultation,  let  him  remove  the  stupid,  the 
dumb,  the  blind,  and  the  deaf,  talking  birds,  decrepit  old  men,  women, 
and  infidels,  the  diseased  and  the  maimed; 

150.  "Since  those,  who  are  disgraced  in  this  life  by  reason  of  sins 
formerly  committed,  are  apt  to  betray  secret  council;  so  are  talking 
birds ;  and  so  above  all  are  women ;  them  he  must,  for  that  reason, 
diligently   remove." 

Many  rules  for  the  prudent  management  of  military  affairs  are  given, 
so  that  wars  may  be  prosecuted  at  favorable  times,  and  an  attack 
from  an  enemy  of  superior  force  be  avoided,  and  that  alliances  may  be 
formed  with  those  whose  aid  is  desirable  and  not  dangerous.  Rules  also 
are  given  for  the  management  of  forces  in  battle  which  do  not  appear 
of   great  practical   utility. 

197.  "Let  him  secretly  bring  over  to  his  party  all  such  leaders  as  he 
can  safely  bring  over;  let  him  be  informed  of  all  that  his  enemies  are 
doing;  and  when  a  fortunate  moment  is  offered  by  heaven,  let  him  give 
battle,   pushing  on  to   conquest  and  abandoning   fear : 

198.  "Yet  he  should  be  more  sedulous  to  reduce  his  enemy  by  nego- 
tiation, by  well  applied  gifts,  and  by  creating  divisions,  using  either 
all  or  some  of  those  methods,  than  by  hazarding  at  any  time  decisive 
action. 

199.  "Since  victory  or  defeat  are  not   surely   foreseen   on   either   side, 


1036  APPENDIX 

when  two  armies  engage  in  the  held ;  let  the  king  then,  if  other  expedients 
prevail,  avoid  a  pitched  battle. 

200.  "But,  should  there  be  no  means  of  applying  the  three  before- 
mentioned  expedients,  let  him,  after  due  preparation,  tight  so  valiantly 
that  his  enemy  may  be  totally  routed. 

201.  "Having  conquered  a  country,  let  him  respect  the  deities  adored 
in  it,  and  their  virtuous  priests;  let  him  also  distribute  largesses  to 
the  people,  and  cause  a  full  exemption  from  terror  to  be  loudly 
proclaimed. 

202.  "When  he  has  perfectly  ascertained  the  conduct  and  intentions 
of  all  the  vanquished,  let  him  fix  in  that  country  a  prince  of  the  royal 
race,  and  give  him  precise  instructions. 

203.  "Let  him  establish  the  laws  of  the  conquered  nation  as  declared 
in  their  books;  and  let  him  gratify  the  new  prince  with  gems  and  other 
precious  gifts. 

204.  "The  seizure  of  desirable  property,  though  it  cause  hatred,  and 
the  donation  of  it,  though  it  cause  love,  may  be  laudable  or  blameable 
on   different  occasions: 

205.  "All  this  conduct  of  human  affairs  is  considered  as  dependent 
on  acts  ascribed  to  the  deity,  and  on  acts  ascribed  to  men;  now  the 
operations  of  the  deity  cannot  be  known  by  any  intenseness  of  thought, 
but    those    of    men    may    be    clearly    discovered." 

The  king  is  admonished  to  take  precautions  for  his  own  personal 
safety  against  assassination  and  poison  and  to  be  constantly  on  his  guard 
•to  frustrate  the  schemes  of  his  enemies. 

Chapter  8  is  "On  Judicature ;  and  on  Law,  private  and  Criminal." 

1.  "A  king,  desirous  of  inspecting  judicial  proceedings,  must  enter 
his  court  of  justice,  composed  and  sedate  in  his  demeanor,  together 
with  Brahmans  and  counsellors,  who  know  how  to  give  him  advice. 

2.  "There,  either  sitting  or  standing,  holding  forth  his  right  arm, 
without  ostentation  in  his  dress  and  ornaments,  let  him  examine  the 
affairs  of  litigant  parties. 

3.  "Each  day  let  him  decide  causes,  one  after  another,  under  the 
eighteen  principal  titles  of  law,  by  arguments  and  rules  drawn  from 
local  usages,  and  from   written  codes : 

4.  "Of  those  titles,  the  first  is  debt,  on  loans  for  consumption,  the 
second,  deposits,  and  loans  for  use;  the  third,  sale  without  ownership; 
the  fourth,  concerns  among  partners;  the  fifth,  subtraction  of  what  has 
been  given; 

5.  "The  sixth,  non-payment  of  wages  or  hire ;  the  seventh,  non-per- 
formance of  agreements;  the  eighth,  rescission  of  sale  and  purchase; 
the   ninth,   disputes  between    master   and   servant; 

6.  "The    tenth,    contests    on    boundaries;    the    eleventh    and    twelfth, 


CODE  OF  MANU  1037 

assault  and  slander;  the  thirteenth,  larceny;  the  fourteenth,  robbery  and 
other  violence;  the  fifteenth,  adultery; 

,,,7.  "The  sixteenth,  altercation  between  man  and  wife,  and  their  several 
duties;  the  seventeenth,  the  law  of  inheritance;  the  eighteenth,  gaming 
with  dice  and  with  living  creatures;  these  eighteen  titles  of  law  are 
settled  as  the  ground  work  of  all  judicial  procedure  in  this  world. 

8.  "Among  men,  who  contend  for  the  most  part  on  the  titles  just 
mentioned,  and  on  a  few  miscellaneous  heads  not  comprised  under 
them,  let  the  king  decide  causes  justly,  observing  primeval  law; 

9.  "But  when  he  cannot  inspect  such  affairs  in  person,  let  him 
appoint,   for   the  inspection   of   them,   a   Brahman   of   eminent   learning; 

10.  "Let  that  chief  judge,  accompanied  by  three  assessors,  fully 
consider  all  causes  brought  before  the  king;  and,  having  entered  the 
court  room,  let  him  sit  or  stand,  but  not  move  backwards  and  forwards. 

11.  "In  whatever  country  these  Brahmans,  particularly  skilled  in  the 
three  several  Vedas,  sit  together  with  the  very  learned  Brahman  appointed 
by  the  king,  the  wise  call  that  assembly  the  court  of  Brahma  with  four 
faces. 

12.  "When  justice,  having  been  wounded  by  iniquity,  approaches  the 
court,  and  the  judges  extract  not  the  dart,  they  also  shall  be  wounded  by  it. 

13.  "Either  the  court  must  not  be  entered  by  judges,  parties,  and 
witnesses,  or  law  and  truth  must  be  openly  declared :  that  man  is  criminal 
who  either  says  nothing,  or  says  what  is  false  and  unjust. 

14.  "When  justice  is  destroyed  by  iniquity,  and  truth  by  false  evidence, 
the  judges,  who  basely  look  on  without  giving*  redress,  shall  also  be 
destroyed. 

18.  "Of  injustice  in  decisions,  one-quarter  falls  on  the  party  in  the 
cause;  one-quarter  on  his  witnesses;  one-quarter  on  all  the  judges;  and 
one-quarter  on  the  king; 

20.  '*A  Brahman  supported  only  by  his  class,  and  one  barely  reputed 
a  Brahman,  but  without  performing  any  sacerdotal  acts,  may,  at  the 
king's  pleasure,  interpret  the  law  to  him,  so  may  the  two  middle  classes; 
but  a  Sudra,  in  no  case  whatever. 

23.  "Let  the  king  or  his  judge,  having  seated  himself  on  the  bench, 
his  body  properly  clothed  and  his  mind  attentively  fixed,  begin  with  long 
reverence' to  the  deities,  who  guard  the  world;  and  then  let  him  enter 
on  the  trial  of  causes : 

24.  "Understanding  what  is  expedient  or  inexpedient,  but  considering 
only  what  is  law  or  not  law,  let  him  examine  all  disputes  between  parties, 
in  the  order  of  their  several  classes. 

25.  "By  external  signs  let  him  see  through  the  thoughts  of  men;  by 
their  voice,  colour,   countenance,  limbs,  eyes,  and  action: 

26.  "From  the  limbs,  the  look,  the  motion  of  the  body,  the  gesticulation, 
the  speech,  the  changes  of  the  eye  and  the.  face,  are  discovered,  the 
internal  workings  of  the  mind. 


IQ38  APPENDIX 

2^.  "The  property  of  a  student  and  an  infant,  whether  by  descent  or 
otherwise,  let  the  king  hold  in  his  custody,  until  the  owner  shall  have 
ended  his  studentship,  or  until  his  infancy  shall  have  ceased  in  his 
sixteenth  year. 

28.  "Equal  care  must  be  taken  of  barren  women,  of  women  without 
sons,  whose  husbands  have  married  other  wives,  of  women  without 
kindred,  or  whose  husbands  are  in  distant  places,  of  widows  true  to 
their  lords,  and  of  women  afflicted  with  illness. 

29.  "Such  kinsmen,  as,  by  any  pretence,  appropriate  the  fortunes  of 
women  during  their  lives,  a  just  king  must  punish  with  a  severity  due 
to  thieves. 

34.  "Property  lost  by  one  man,  and  found  by  another,  let  the  king 
secure,  by  committing  it  to  the  care  of  trustworthy  men ;  and  those, 
whom  he  shall  convict  of  stealing  it,  let  him  cause  to  be  trampled  on  by 
an  elephant. 

41.  "A  king,  who  knows  the  revealed  law,  must  enquire  into  the 
particular  laws  of  classes,  the  laws  of  usages  of  districts,  the  customs 
of  traders,  and  the  rules  of  certain  families,,  and  establish  their  peculiar 
laws,  if  they  be  not  repugnant  to  the  law  of  God; 

42.  "Since  all  men,  who  mind  their  own  customary  ways  of  proceeding 
and  are  fixed  in  the  discharge  of  their  several  duties,  become  united 
by  affection  with  the  people  at  large,  even  though  they  dwell  far  asunder. 

43.  "Neither  the  king  himself  nor  his  officers  must  ever  promote 
litigation :   nor   ever  neglect   a  law-suit   instituted   by   others. 

47.  "When  a  creditor  sues  before  him  for  the  recovery  of  his  right  from 
a  debtor,  let  him  cause  the  debtor  to  pay  what  the  creditor  shall  prove  due. 

48.  "By  whatever  lawful  means  a  creditor  may  have  gotten  possession 
of  his  own  property,  let  the  king  ratify  such  payment  by  the  debtor^ 
though  obtained  even  by  compulsory  means. 

49.  "By  the  mediation  of  friends,  by  suit  in  court,  by  artful  management, 
or  by  distress,  a  creditor  may  recover  the  property  lent;  and,  fifthly,  by 
legal  force. 

50.  "That  creditor,  who  recovers  his  right  from  his  debtor,  must  not 
be  rebuked  by  the  king   for   retaking  his  own   property. 

51.  "In  a  suit  for  a  debt,  which  the  defendant  denies,  let  him  award 
payment  to  the  creditor  of  what,  by  good  evidence,  he  shall  prove  due, 
and  exact  a  small  fine,  according  to  the  circumstances  of  the  debtor. 

52.  "On  the  denial  of  a  debt,  which  the  defendant  has  in  court  been 
required  to  pay,  the  plaintiff  must  call  a  witness,  who  was  present  at 
the  place  of  the  loan,  or  produce  other  evidence,  as  a  note  and  the  like. 

53.  "The  plaintiff,  who  calls  a  witness  not  present  at  the  place,  where 
the  contract  was  made,  or,  having  knowingly  called  him,  disclaims  him 
as  his  witness ;  or  who  perceives  not,  that  he  asserts  confused  and 
contradictory   facts ; 

54.  "Or  who,  having  stated  what  he  designs  to  prove,  varies  afterwards 


CODE  OF  MANU  1039 

from  his  case,  or  who,  being  questioned  on  a  fact,  which  he  had  before 
admitted,   refuses   to   acknowledge  that  very   fact; 

55.  "Or  who  has  conversed  with  the  witness  in  a  place  unfit  for  such 
conversation;  or  who  declines  answering  a  question  properly  put;  or 
who  departs  from  the  court; 

56.  "Or  who  being  ordered  to  speak,  stands  mute;  or  who  proves  not 
what  he  has  alleged;  or  who  knows  not  what  is  capable  or  incapable 
of  proof;  such  a  plaintiff  shall  fail  in  that  suit; 

57.  "Him  who  has  said  "I  have  witnesses,"  and,  being  told  to  produce 
them,  produces  them  not,  the  judge  must  on  this  account  declare 
nonsuited. 

58.  "If  the  plaintiff  delay  to  put  in  his  plaint;  he  may,  according  to 
the  nature  of  the  case,  be  corporally  punished  or  justly  amerced;  and, 
if  the  defendant  plead  not  within  three  fortnights,  he  is  by  law  condemned. 

59.  "In  the  double  of  that  sum,  which  the  defendant  falsely  denies, 
or  on  which  the  complainant  falsely  declares,  shall  these  two  men,  wil- 
fully offending  against  justice,  be  fined  by  the  king. 

60.  "When  a  man  has  teen  brought  into  court  by  a  suitor  for  property, 
and,  being  called  on  to  answer,  denies  the  debt,  the  cause  should  be 
decided  by  the  Brahman  who  represents  the  king,  having  heard  three 
witnesses  at  least. 

61.  "What  sort  of  witnesses  must  be  produced  by  creditors  and  others 
on  the  trial  of  causes,  I  will  comprehensively  declare;  and  in  what 
manner   those   witnesses   must   give   true   evidence. 

62.  "Married  house-keepers,  men  with  male  issue,  inhabitants  of  the 
same  district,  either  of  the  military,  the  commercial,  or  the  servile  class, 
are  competent,  when  called  by  the  party,  to  give  their  evidence;  not  any 
persons  indiscriminately,  except  in  such  cases  of  urgency  as  will  soon 
be  mentioned. 

63.  "Just  and  sensible  men  of  all  the  four  classes  may  be  witnesses 
on  trials ;  men,  who  know  their  whole  duty,  and  are  free  from  convetous- 
ness:  but  men  of  an  opposite  character  the  judge  must  reject. 

64.  "Those  must  not  be  admitted  who  have  a  pecuniary  interest;  nor 
familiar  friends,  nor  menial  servants;  nor  enemies;  nor  men  formerly 
perjured;  nor  persons  grievously  diseased,  nor  those,  who  have  committed 
heinous  offenses. 

65.  "The  king  cannot  be  made  a  witness;  nor  cooks,  and  the  like 
mean  artificers ;  nor  public  dancers  and  singers :  nor  a  priest  of  deep 
learning  in  scripture;  nor  a  student  in  theology;  nor  an  anchoret  secluded 
from   all   worldly   connexions ; 

(:^.  "Nor  one  wholly  dependent;  nor  one  of  bad  fame;  nor  one,  who 
follows  a  cruel  occupatiop ;  nor  one,  who  acts  openly  against  the  law ; 
nor  a  decrepit  old  man ;  nor  a  child ;  nor  one  man  only ;  unless  he  be 
distinguished  for  virtue;  nor  a  wretch  of  the  lowest  mixed  class;  nor 
one,  who  has  lost  the  organs  of  sense; 


I040  APPENDIX 

67.  "Nor  one  extremely  aggrieved  ;  nor  one  intoxicated ;  nor  a  madman ; 
nor  one  tormented  with  hunger  or  thirst ;  nor  one  oppressed  by  fatigue ; 
nor  one  excited  by  lust;  nor  one  inflamed  with  wrath;  nor  one  who  has 
been  convicted  of  theft. 

68.  ''Women  should  regularly  be  witnesses  for  women;  twice-born 
for  men  alike  twice-born;  good  servants  and  mechanics,  for  servants 
and  mechanics;  and  those  of  the  lowest  race,  for  those  of  the  lowest; 

69.  "But  any  person  whatever,  who  has  positive  knowledge  of  trans- 
actions in  the  private  apartments  of  a  house,  or  in  a  forest,  or  at  a 
time  of  death,  may  give  evidence  between  the  parties : 

70.  "On  failure  of  witnesses  duly  qualified,  evidence  may  in  such  cases 
be  given  by  a  woman,  by  a  child,  or  by  an  aged  man,  by  a  pupil,  by  & 
kinsman,  by  a  slave,  or  by  a  hired  servant; 

71.  "Yet  of  children,  of  old  men,  and  of  the  diseased,  who  are  all  apt 
to  speak  untruly,  the  judge  must  consider  the  testimony  as  weak;  and 
much  more,  that  of  men  with  disordered  minds : 

^2.  "In  all  cases  of  violence,  of  theft  and  adultery,  of  defamation  and 
assault,  he  must  not  examine  too  strictly  the  competence  of  witnesses. 

yZ'  "If  there  be  contradictory  evidence,  let  the  king  decide  by  the 
plurality  of  credible  witnesses;  if  equality  in  number,  by  superiority  in 
virtue;  if  parity  in  virtue,  by  the  testimony  of  such  twice-born  men,  as 
have   best  performed  public  duties, 

74.  "Evidence  of  what  has  been  seen,  or  of  what  has  been  heard,  as 
slander  and  the  like,  given  by  those  who  saw  or  heard  it,  is  admissible; 
and  a  witness  who  speaks  truth  in  those  cases,  neither  deviates  from 
virtue  nor  loses  his  wealth ; 

75.  "But  a  witness,  who  knowingly  says  anything,  before  an  assembly 
of  good  men,  different  from  what  he  had  seen  or  heard,  shall  fall  head- 
long, after  death,  into  a  region  or  horror,  and  he  debarred  from  heaven. 

76.  "When  a  man  sees  or  hears  anything,  without  being  then  called 
upon  to  attest  it,  yet,  if  he  be  afterwards  examined  as  a  witness,  he  must 
declare  it,  exactly  as  it  was  seen,  and  as  it  was  heard. 

Tj.  "One  man,  untainted  with  covetousness  and  other  vices,  may 
in  some  cases  be  the  sole  witness,  and  will  have  more  weight  than 
many  women :  because  female  understandings  are  apt  to  waver ;  or 
than   many  other  men,   who  have  been  tarnished  with  crimes. 

'j'^.  "What  witnesses  declare  naturally,  or  without  bias,  must  be  re- 
ceived on  trials ;  but  what  they  improperly  say,  from  some  unnatural  bent, 
is  inapplicable  to  the  purposes  of  justice. 

79.  "The  witnesses  being  assembled  in  the  middle  of  the  court-room, 
tn  the  presence  of  the  plaintiff  and  the  defendant,  let  the  judge  examine 
them,   after  having  addressed   them   together   in   the   following  manner : 

80.  "What  ye  know  to  have  been  transacted  in  the  matter  before 
ts,  between  the  parties  reciprocally,  declare  at  large  and  with  truth; 
for  your  evidence  in  this   cause  is  required;" 


CODE  OF  MANU  1041 

The  most  severe  penalties  in  the  present  and  future  incarnations  are 
denounced  against  false  witnesses  and  fame  and  beatitude  promised 
to  the  truthful. 

103.  "In  some  cases,  a  giver  of  false  evidence  from  a  pious  motive, 
even  though  he  know  the  truth,  shall  not  lose  a  seat  in  heaven:  such 
evidence  wise  men  call  the  speech  of  the  gods. 

104.  "Whenever  the  death  of  a  man,  who  had  not  been  a  grievous 
offender,  either  of  the  servile,  the  commercial,  the  military  or  the 
sacerdotal  class,  would  be  occasioned  by  true  evidence,  from  the  known 
rigor  of  the  king,  even  though  the  fault  arose  from  inadvertence  or 
error,   falsehood   may  be   spoken:   it   is   even   preferable  to   truth. 

105.  "Such  witnesses  must  offer,  as  oblations  to  Saraswati,  cakes 
of  rice  and  milk  addressed  to  the  goddess  of  speech;  and  thus  will 
they   fully   expiate   that  venial   sin   of   benevolent   falsehood. 

106.  "Or  such  a  witness  may  pour  clarified  butter  into  the  holy  fire, 
according  to  the  sacred  rule,  hallowing  it  with  the  texts  called  cushmdndd, 
or  with  those  which  relate  to  Varuna,  beginning  with  ud;  or  with  the 
three  texts  appropriated  to  the  water  gods. 

107.  "A  man  who  labours  not  .under  illness,  yet  comes  not  to  give 
evidence  in  cases  of  loans  and-  the  like,  within  three  fortnights  after 
due  summons,  shall  take  upon  himself  the  whole  debt,  and  pay  a  tenth 
part  of  it  as  a  fine  to  the  king. 

108.  "The  witness,  who  has  given  evidence,  and  to  whom,  within 
seven  days  after,  a  misfortune  happens  from  disease,  fire,  or  the  death 
of  a  kinsman,  s-hall  be  condemned  to  pay  the  debt  and  a  fine. 

109.  "In  cases  where  no  witness  can-  be  had,  between  two  parties 
opposing  each  other,  the  judge  may  acquire  a  knowledge  of  the  truth 
by  the  oath  of  the  parties;  or  if  he  cannot  otherwise  perfectly  ascertain  it. 

113.  "Let  a  judge  cause  a  priest  to  swear  by  his  veracity;  a  soldier, 
by  his  horse,  or  elephant,  and  his  weapons ;  a  merchant,  by  his  kine,. 
grain,  and  gold;  a  mechanic  or  servile  man,  by  imprecating  on  his  own 
head,   if  he   speak   falsely,   all  possible   crimes ; 

114.  "Or,  on  great  occasions,  let  him  cause  the  party  to  hold  fire,  or  ta 
dive  under  water,  or  severally  to  touch  the  heads  of  his  children  and  wife ; 

139.  "A  debt  being  admitted  by  the  defendant,  he  must  pay  five  in 
the  hundred,  as  a  fine  to  the  king ;  but,  if  it  be  denied  and  proved, 
twice    as   much,    this    law    was    enacted   by    Manu. 

140.  "A  lender  of  money  may  take,  in  addition  to  his  capital,  the 
interest  allowed  by  Vasisht'ha,  that  is,  an  eighth  part  of  a  hundred,  or 
one  and  a  quarter,  by  the  month,  if  he  have  a  pledge; 

141.  "Or,  if  he  have  no  pledge,  he  may  take  two  in  the  hundred  by 
the  month,  remembering  the  duty  of  good  men;  for,  by  thus  taking 
two    in    the    hundred,    he    becomes    not    a    sinner    for    gain. 

142.  "He  may  thus  take  in   proportion  to  the  risk,  and  in  the  direct 


I042  APPENDIX 

order  of  the  classes,  two  in  the  hundred  from  a  priest,  three  from  a 
soldier,  four  from  a  merchant,  and  five  from  a  mechanic  or  servile 
man,  but  never  more,  as  interest,  by  the  month. 

143.  "If  he  takes  a  beneficial  pledge,  or  a  pledge  to  be  used  for  his 
profit,  he  must  have  no  other  interest  on  the  loan;  nor,  after  a  great 
length  of  time,  or  when  the  profits  have  amounted  to  the  debt,  can  he 
give  or  sell  such  a  pledge,  though  he  may  assign  it  in  pledge  to  another. 

144.  "A  pledge  to  be  kept  only  must  not  be  used  by  force,  that  is, 
against  consent:  the  pawnee  so  using  it  must  give  up  his  whole  interest, 
or  must  satisfy  the  owner,  if  it  be  spoiled  or  worn  out,  by  paying 
him  the  original  price  of  it;  otherwise,  he  commits  a  theft  of  the  pawn. 

145.  "Neither  a  pledge  without  limit,  nor  a  deposit,  are  lost  to  the 
owner  by  lapse  of  time :  they  are  both  recoverable,  though  they  have  long 
remained   with   the   bailee. 

146.  "A  milch  cow,  a  camel,  a  riding-horse,  a  bull  or  other  beast, 
which  has  been  sent  to  be  tamed  for  labour,  and  other  things  used 
with    friendly    assent,    are    not    lost    by    length    of   time    to    the    owner. 

147.  'In  general,  whatever  chattel  the  owner  sees  enjoyed  by  others 
for  ten  years,  while,  though  present,  he  says  nothing,  that  chattel  he 
shall   not    recover: 

148.  "If  he  be  neither  an  idiot,  nor  an  infant  under  the  full  age  of 
fifteen  years,  and  if  the  chattel  be  adversely  possessed  in  a  place  where 
he  may  see  it,  his  property  in  it  is  extinct  by  law,  and  the  adverse 
possessor   shall  keep   it. 

149.  "A  pledge,  a  boundary  of  land,  the  property  of  an  infant,  a 
deposit  either  open  or  in  a  chest  sealed,  female  slaves,  the  wealth  of  a 
king,  and  of  a  learned  Brahman,  are  not  lost  in  consequence  of  adverse 
enjoyment. 

158.  "The  man,  who  becomes  surety  for  the  appearance  of  a  debtor 
in  this  world,  and  produces  him  not,  shall  pay  the  debt  out  of  his  own 
property ; 

159.  "But  money,  due  by  a  surety,  or  idly  promised  to  musicians  and 
actresses,  or  lost  at  play,  or  due  for  spirituous  liquors,  or  what  remains 
unpaid  of  a  fine  or  toll,  the  son  of  the  surety  or  debtor  shall  not  in 
general  be  obliged  to  pay; 

160.  "Such  is  the  rule  in  cases  of  a  surety  for  appearance  or  good 
behavior;  but,  if  a  surety  for  payment  should  die,  the  judge  may  compel 
even  his  heirs  to  discharge  the  debt. 

162.  "If  the  surety  had  received  money  from  the  debtor,  and  had 
enough  to  pay  the  debt,  the  son  of  him,  who  so  received  it,  shall  dis- 
charge the  debt  out  of  his  inherited  property:  this  is  a  sacred  ordinance. 

163.  "A  contract  made  by  a  person  intoxicated  or  insane,  or  grievously 
disordered,  or  wholly  dependent,  by  an  infant  or  a  decrepit  old  man, 
or  in  the  name  of  another  by  a  person  without  authority,  is  utterly  null. 

164.  "That    plaint    can    have    no    effect,    though    it    may    be    supported 


CODE  OF  MANU  1043 

by  evidence,  which  contains  a  cause  of  action  inconsistent  with  positive 
law  or  with  settled  usage. 

165.  "When  the  judge  discovers  a  fraudulent  pledge  or  sale,  a  fraud- 
ulent gift  and  acceptance,  or  in  whatever  other  case  he  detects  fraud  let 
him  annul  the  whole  transaction. 

166.  "If  the  debtor  be  dead,  and  if  the  money  borrowed  was  expended 
for  the  use  of  his  family,  it  must  be  paid  by  that  family,  divided  or 
undivided,   out   of   their  own   estate. 

167.  "Should  even  a  slave  make  a  contract  in  the  name  of  his  absent 
master  for  the  behoof  of  the  family,  that  master,  whether  in  his  own 
country  or  abroad,  shall  not  rescind  it. 

168.  "What  is  given  by  force  to  a  man  who  cannot  accept  it  legally, 
what  is  by  force  enjoyed,  by  force  caused  to  be  written,  and  all  other 
things  done  by  force  or  against  free  consent,  Manu  his  pronounced 
void. 

179.  "A  sensible  man  should  make  a  deposit  with  some  person  of 
high  birth,  and  of  good  morals,  well  acquainted  with  law,  habitually 
veracious,    having    a    large    family    wealthy    and    venerable. 

180.  "Whatever  thing,  and  in  whatever  manner,  a  person  shall  deposit 
in  the  hands  of  another,  the  same  thing,  and  in  the  same  manner  ought 
to  be  received  back  by  the  owner:  as  the  delivery  was,  so  must  be 
the   receipt. 

181.  "He,  who  restores  not  to  the  depositor,  on  his  request,  what 
has  been  deposited,  may  first  be  tried  by  the  judge  in  the  following 
manner,  the  depositor  himself  being  absent. 

182.  "On  failure  of  witnesses,  let  the  judge  actually  deposit  gold, 
or  precious  things,  with  the  defendant,  by  the  artful  contrivance  of 
spies,  who  have  passed  the  age  of  childhood,  and  whose  persons  are 
engaging : 

183.  "Should  the  defendant  restore  that  deposit  in  the  manner  and 
shape,  in  which  it  was  bailed  by  the  spies,  there  is  nothing  in  his  hands 
for  which   others  can  justly  accuse  him. 

184.  "But  if  he  restore  not  the  gold,  or  precious  things,  as  he  ought, 
to  those  emissaries,  let  him  be  apprehended  and  compelled  to  pay  the 
value  of  both  deposits:  this  is  a  settled  rule. 

189.  "If  a  deposit  be  seized  by  thieves,  or  destroyed  by  vermin  or 
washed  away  by  water,  or  consumed  by  fire,  the  bailee  shall  not  be 
obliged  to  make  it  good,  unless  he  took  of  it  for  himself. 

194.  "Regularly  a  deposit  should  be  produced,  the  same  in  kind  and 
quantity  as  it  was  bailed,  by  the  same  and  to  the  same  person,  by  whom 
and  from  whom  it  was  received,  and  before  the  same  company,  who 
were  witnesses  to  the  deposit:  he  who  produces  it  in  another  manner, 
ought  to  be  fined; 

195.  "But  a  thing,  privately  deposited,  should  be  privately  restored 
by   and   to   the   person,   by   and    from   whom    it   was    received:    as    the 


I044  APPENDIX 

bailment   was,   so   should   be   the   delivery,   according   to   a   rule   in   the 
Veda. 

201.  "He,  who  had  received  a  chattel,  by  purchase  in  open  market,. 
before  a  number  of  men,  justly  acquires  the  absolute  property,  by  having 
paid  the  price  for  it,  if  he  can  produce  the  vendor; 

202.  "But,  if  the  vendor  be  not  producible,  and  the  vendee  prove 
the  public  sale,  the  latter  must  be  dismissed  by  the  king  without 
punishment;  and  the  former  owner,  who  lost  the  chattel,  may  take  it 
back  by  paying  the  vendee  half  its  value." 

Provision   is  made   for  the   division  of   the   fees  of  priests. 

209.  "At  some  holy  rites,  let  the  reader  of  the  Yajurveda  take  the 
car,  and  the  Brahma,  or  superintending  priest,  the  horse;  or,  on  another 
occasion,  let  the  reader  of  the  Rigveda  take  the  horse,  and  the  chanter 
of  the  Samaveda  receive  the  carriage,  in  which  the  purchased  materials 
of  the  sacrifice  had  been  brought. 

210.  "A  hundred  cows  being  distributable  among  sixteen  priests,  the 
four  chief,  or  first  set  are  entitled  to  near  half,  or  forty-eight;  the 
next  four,  to  half  of  that  number;  the  third  set,  to  a  third  part  of  it; 
and  the  fourth  set  to  a  quarter: 

215.  "That  hired  servant  or  workman,  who,  not  from  any  disorder 
but  from  indolence,  fails  to  perform  his  work  according  to  his  agree- 
ment, shall  be  fined  eight  racticas,  and  his  wages  or  hire  shall,  not  be  paid. 

219.  "The  man,  among  the  traders  and  other  inhabitants  of  a  town 
or  district,  who  breaks  a  promise  through  avarice,  though  he  had  taken 
an  oath  to  perform  it,  let  the  king  banish  from  his  realm : 

220.  "Or,  according  to  circumstances,  let  the  judge,  having  arrested 
the  promise-breaker,  condemn  him  to  pay  six  nishcas,  or  four  suvernas,. 
or  one  satamdna  of  silver,  or  all  three  if  he  deserve  such  a  fine. 

222.  "A  man,  who  has  bought  or  sold  anything  in  this  world,  that  has 
a  fixed  price,  and  is  not  perishable,  as  land  or  metals,  and  wishes  to^ 
rescind  the  contract,  may  give  or  take  back  such  a  thing  within  ten  days; 

223.  "But,  after  ten  days,  he  shall  neither  give  nor  take  it  back: 
the  giver  or  the  taker,  except  by  consent,  shall  be  fined  by  the  king 
six   hundred  panas. 

227.  "The  nuptial  texts  are  a  certain  rule  in  regard  to  wedlock,  and' 
the  bridal  contract  is  known  by  the  learned  to  be  complete  and  irre- 
vocable on  the  seventh  step  of  the  married  pair,  hand  in  hand,  after 
those    texts    have    been    pronounced. 

229.  "I  now  will  decide  exactly,  according  to  principles  of  law,  the 
contests  usually  arising  from  the  fault  of  such  as  own  herds  of  cattle,, 
and  of  such  as  are  hired  to  keep  them. 

230.  "By  day  the  blame  falls  on  the  herdsman;  by  night  on  the  owner, 
if  the  cattle  be  fed  and  kept  in  his  own  house;  but,  if  the  place  of  their 
food  and  custody  be  different,  the  keeper  incurs  the  blame. 


CODE   OF   MAXU  1045 

231.  'That  hired  servant,  whose  wages  are  paid  with  milk,  may, 
with  the  assent  of  the  owner,  milk  the  best  cow  out  of  ten:  such  are 
the  wages  of  herdsmen,  unless  they  be  paid  in  a  different  mode. 

2^2.  "The  herdsman  himself  shall  make  good  the  loss  of  a  beast,  which 
through  his  want  of  due  care  has  strayed,  has  been  destroyed  by  rep- 
tiles or  killed  by  dogs,  or  has  died  by   falling  into  a  pit; 

233.  "But  he  shall  not  be  compelled  to  make  it  good,  when  robbers 
have  carried  it  away,  if,  after  fresh  proclamation  and  pursuit,  he  give 
notice  to  his  master  in  a  proper  place  and  season." 

Other  rules  relating  to  the  loss  of  cattle  and  trespasses  committed 
by  them  are  given.  In  order  to  preserve  established  boundary  lines  the 
planting  of  trees  or  placing  of  stones  and  other  durable  monuments 
is  enjoyed  and  rules  for  the  settlement  of  disputes  regarding  boundaries 
are  given. 

267.  "A  soldier,  defaming  a  priest,  shall  be  fined  a  hundred  panas; 
a  merchant,  thus  offending,  a  hundred  and  fifty,  or  two  hundred,  but  for 
such  an  offense,  a  mechanic  or  servile  man  shall  be  whipped.  • 

268.  "A  priest  shall  be  fined  fifty,  if  he  slander  a  soldier;  twenty-five 
if    a   merchant;    and  twelve   if   he    slander   a   man   of   the   servile   class. 

269.  "For  abusing  one  of  the  same  class,  a  twice-born  man  shall 
be  fined  only  twelve;  but  for  ribaldry  not  to  be  uttered,  even  that  and 
every    fine    shall    be    doubled. 

270.  "A  once-born  man,  who  insults  the  twice-born  with  gross  invec- 
tives, ought  to  have  his  tongue  slit;  for  he  sprang  from  the  lowest  part 
of  Brahma. 

171.  "If  he  mention  their  names  and  classes  with  contumely,  as  if  he 
say  "Oh  Devadatta,  thou  refuse  of  Brahmans,"  an  iron  style,  ten  fingers, 
long,    shall    be    thrust    red    hot    into    his    mouth. 

279.  "With  whatever  member  of  a  low-born  man  shall  assault  or  hurt 
a  superior,  even  that  member  of  his  must  be  slit,  or  cut  more  or  less, 
in    proportion   to    the    injury;    this    is    an    ordinance    of    Manu. 

280.  "He,  who  raises  his  hand  or  staff  against  another,  shall  have 
his  hand  cut;  and  he,  who  kicks  another  in  wrath,  shall  have  an 
incision  made  in  his  foot. 

281.  "A  man  of  the  lowest  class,  who  shall  insolently  place  himself 
on  the  same  seat  with  one  of  the  highest,  shall  either  be  banished 
with  a  mark  on  his  hinder  parts,  or  the  king  shall  cause  a  gash  to 
be   made   on   his  buttock :" 

Special  cases  of  assaults,  negligent  and  accidental  injuries  are  men- 
tioned and  punishments  prescribed  where  injury  results  from  the  fault 
of   any  one. 

299.  "A  wife,  a  son,  a  servant,  a  pupil,  and  a  younger  whole  brother, 
may  be  corrected  when  they  commit  faults,  with  a  rope  or  the  small 
shoot  of  a  cane ; 


I046  APPENDIX 

300.  "But  on  the  back  part  only  of  their  bodies,  and  not  on  a  noble  part 
by  any  means:  he  who  strikes  them  otherwise  than  by  this  rule,  incurs 
the  guilt,  or  shall  pay  the  fine,  of  a  thief. 

322.  "For  stealing  more  than  fifty  palas,  it  is  enacted  that  a  hand  shall 
be  amputated:  for  less,  the  king  shall  set  a  fine  eleven  times  as  much  as 
the   value. 

323.  "For  stealing  men  of  high  birth,  and  women  above  all,  and  the 
most  precious  gems,  as  diamonds  or  rubies,  the  thief  deserves  capital 
punishment. 

325.  "For  taking  kine  belonging  to  priests,  and  boring  their  nostrils, 
or  for  stealing  their  other  cattle,  the  offender  shall  instantly  lose  half 
of  one  foot." 

A  considerable  list  of  articles  of  property  is  given,  for  the  stealing  of 
which  a  fine  of  double  the  value  of  the  property  taken  is  imposed. 

332.  "If  the  taking  be  violent,  and  in  the  sight  of  the  owner,  it 
is  robbery;  if  privately  in  his  absence,  it  is  only  theft;  and  it  is  considered 
as  theft,  when  a  man  having  received  anything,  refuses  to  give  it  back. 

355.  "On  him,  who  steals  the  before-mentioned  things,  when  they  are 
prepared  for  use,  let  the  king  set  the  lowest  amercement  of  the  three; 
and  the  same  on  him,  who  steals  only  fire  from  the  temple. 

334.  "With  whatever  limb  a  thief  commits  the  offense  by  any  means 
in  this  world,  as  if  he  break  a  wall  with  his  hand  or  his  foot,  even  that 
limb  shall  the  king  amputate,  for  the  prevention  of  a  similar  crime. 

336.  "Where  another  man  of  lower  birth  would  be  fined  one  pana,  the 
king  shall  be  fined  a  thousand,  and  he  shall  give  the  fine  to  the  priests 
or  cast  it  into  the  river:  this  is  a  sacred  rule. 

337.  "But  the  fine  of  a  Sudra  for  theft  shall  be  eightfold;  that  of  a 
Vaisya,  sixteen  fold;  that  of  a  Cshatriya,  two  and  thirty  fold. 

338.  "That  of  a  Brahman,  four  and  sixty  fold;  or  a  hundred  fold 
complete  or  even  twice  four  and  sixty  fold;  each  of  them  knowing  the 
nature  of  his  offense. 

340.  "A  priest  who  willingly  receives  anything,  either  for  sacrificing 
or  instructing,  from  the  hand  of  a  man  who  had  taken  what  the  owner 
had  not  given,  shall  be  punished  even  as  the  thief. 

348.  "The  twice-born  may  take  arms,  when  their  duty  is  obstructed  by 
force ;  and  when,  in  some  evil  time,  a  disaster  has  befallen  the  twice-born 
classes ; 

349.  "And  in  their  own  defense;  and  in  a  war  for  just  cause;  and  in 
defense  of  a  woman;  or  a  priest;  he  who  kills  justly  commits  no  crime. 

350.  "Let  a  man,  without  hesitation,  slay  another,  if  he  cannot  other- 
wise escape,  who  assails  him  with  intent  to  murder,  whether  young  or  old, 
or  his  preceptor,  or  a  Brahman,  deeply  versed  in  the  scripture. 

356.  "He,  who  talks  with  the  wife  of  another  man  at  a  place  of 
pilgrimage,  in  a  forest  or  a  grove,  or  at  the  confluence  of  rivers,  incurs 
the  guilt  of  an  adulterous  inclination: 


CODE  OF  MANU  1047 

357.  "To  send  her  flowers  or  perfumes,  to  sport  and  jest  with  her, 
to  touch  her  apparel  or  ornaments,  to  sit  with  her  on  the  same  couch, 
are  held  adulterous  acts  on  his  part ; 

358.  "To  touch  a  married  woman  on  her  breasts  or  any  other  place, 
which  ought  not  to  be  touched,  or  being  touched  unbecomingly  by  her, 
to  bear  it  complacently,  are  adulterous  acts  with  mutual  assent. 

359.  "A  man  of  the  servile  class,  who  commits  actual  adultery  with 
the  wife  of  a  priest,  ought  to  suffer  death;  the  wives,  indeed,  of  all  the 
four  classes   must  ever  be   most  especially   guarded. 

371.  "Should  a  wife,  proud  of  her  family  and  the  great  qualities  of 
her  kinsmen,  actually  violate  the  duty,  which  she  owes  to  her  lord,  let 
the  king  condemn  her  to  be  devoured  by  dogs  in  a  place  much  frequented. 

y]2.  "And  let  him  place  an  adulterer  on  an  iron  bed  well  heated, 
under  which  the  executioners  shall  throw  logs  continually,  till  the  sinful 
wretch  be  there  burned  to  death. 

374.  "A  mechanic  or  servile  man,  having  an  adulterous  connexion 
with  a  woman  of  a  twice-born  class,  whether  guarded  at  home  or  un- 
guarded shall  thus  be  punished:  if  she  was  unguarded,  he  shall  lose  the 
part  offending,  and  his  whole  substance;  if  guarded,  and  a  priestess,  every 
thing,  even  his  life. 

380.  "Never  shall  the  king  slay  a  Brahman,  though  convicted  of  all 
possible  crimes:  let  him  banish  the  offender  from  his  realm,  but  with  all 
his  property  secure,  and  his  body  unhurt: 

386.  "That  king,  in  whose  realm  lives  no  thief,  no  adulterer,  no 
defamer,  no  man  guilty  of  atrocious  violence,  and  no  committer  of 
assaults,  attains  the  mansion  of  Sacra. 

389.  "A  mother,  a  father,  a  wife,  and  a  son  shall  not  be  forsaken : 
he,  who  forsakes  either  of  them,  unless  guilty  of  a  deadly  sin,  shall  pay 
six  hundred  panas  as  a  fine  to  the  king. 

392.  "The  priest,  who  gives  an  entertainment  to  twenty  men.  of  the 
three  first  classes,  without  inviting  his  next  neighbor,  and  his  neighbor 
next  but  one,  if  both  be  worthy  of  an  invitation,  shall  be  fined  one 
mdsha  of  silver. 

394.  "Neither  a  blind  man  nor  an  idiot,  nor  a  cripple,  nor  a  man  full 
seventy  years  old,  nor  one  who  confers  great  benefit  on  priests  of 
eminent  learning,  shall  be  compelled  by  any  king  to  pay  taxes. 

395.  "Let  the  king  always  do  honour  to  a  learned  theologian,  to  a  man 
either  sick  or  grieved,  to  a  little  child,  to  an  aged  or  indigent  man,  to  a 
man  of  exalted  birth,  and  to  a  man  of  distinguished  virtue. 

396.  "Let  a  washerman  wash  the  clothes  of  his  employers  by  little 
and  little,  or  piece  by  piece,  and  not  hastily,  on  a  smooth  board  of 
S dlmali-w 00 d:  let  him  never  mix  the  clothes  of  one  person  with  the 
clothes  of  another,  nor  suffer  any  but  the  owner  to  wear  them." 

Tolls,  markets  and  ferries  are  regulated. 

414.    "A    Sudra,   though   emancipated   by  his   master,   is   not   released 


1048  APPENDIX 

from  a  state  of  servitude;   for  of  a  state,  which  is  natural  to  him,   by 
whom  can  he  be  divested? 

415.  "There  are  servants  of  seven  sorts;  one  made  captive  under  a 
standard  or  in  battle,  one  maintained  in  consideration  of  service,  one 
born  of  a  female  slave  in  the  house,  one  sold,  or  given,  or  inherited  from 
ancestors,  and  one  enslaved  by  way  of  punishment  on  his  inability  to  pay 
a  large  fine. 

416.  "Three  persons,  a  wife,  a  son,  and  a  slave,  are  declared  by  law 
to  have  in  general  no  wealth  exclusively  their  own :  the  wealth,  which 
they  may  earn,  is  regularly  acquired  for  the  man,  to  whom  they  belong." 

This  chapter  covers  a  vast  field  but  in  a  crude  and  disjointed  manner. 
Its  moral  tone  is  not  so  high  as  that  of  the  chapter  dealing  with  the 
duties  of  the  Brahmans.  The  king  is  not  expected  to  exhibit  the  loftiest 
virtues  but  to  deal  with  the  vices  and  crimes  of  men  by  force  and  in 
ways  calculated  to  restrain  them.  The  spirit  of  caste  and  class  privilege 
is  constantly  inculcated.  The  Brahmans  are  granted  special  favors  and 
exempted  from  extreme  punishment  while  the  poor  Sudras  are  loaded 
with  the  heaviest  burdens  without  hope  of  present  reward. 

Chapter  9  is  entitled,  "On  the  Same ;  and  on  the  Commercial  and 
Servile  Classes." 

2.  "Day  and  night  must  women  be  held  by  their  protectors  in  a  state 
of  dependence;  but  in  lawful  and  innocent  recreations,  though  rather 
addicted  to  them,  they  may  be  left  at  their  own  disposal. 

3.  "Their  fathers  protect  them  in  childhood;  their  husbands  protect 
them  in  youth ;  their  sons  protect  them  in  age :  a  woman  is  never  fit  for 
independence. 

8;  "The  husband,  after  conception  by  his  wife,  becomes  himself  an 
embryo,  and  is  born  a  second  time  here  below ;  for  which  reason  the 
wife   is   called  jdyd,   since  by  her    (jdydte)    he   is   born   again. 

9.  "Now  the  wife  brings  forth  a  son  endued  with  similar  qualitie-; 
to  those  of  the  father ;  so  that  with  the  view  to  an  excellent  offspring, 
he  must  vigilantly  guard  his  wife. 

10.  "No  man,  indeed,  can  wholly  restrain  women  by  violent  measures; 
but,  by  these  expedients,  they  may  be  restrained: 

11.  "Let  the  husband  keep  his  wife  employed  in  the  collection  and 
expenditure  of  wealth,  in  purification  and  female  duty,  in  the  prepara- 
tion of  daily  food,  and  the  superintendence  of  household  utensils, 

12.  "By  confinement  at  home,  even  under  affectionate  and  observant 
guardians,  they  are  not  secure;  but  those  women  are  truly  secure,  who 
are  guarded  by  their  own  good  inclinations. 

13.  "Drinking  spirituous  liquor,  associating  with  evil  persons,  absence 
from  her  husband,  rambling  abroad,  unseasonable  sleep,  and  dwelliuj^  in 
the  house  of  another,  are  six  faults  which  bring  infamy  on  a  married 


CODE  OF  MANU  1049 

Then  follow  sections  relating  to  the  duties  and  conduct  of  women  and 
inculcating   chastity  and   fidelity. 

45.  "Then  only  is  a  man  perfect,  when  he  consists  of  three  persons 
united,  his  wife,  himself,  and  his  son;  and  thus  have  learned  Brahmans 
announced  this  maxim:  The  husband  is  even  one  person  with  his  wife,' 
for  all  domestic  and  religious,  not  for  all  civil,  purposes. 

59.  "On  failure  of  issue  by  the  husband,  if  he  be  of  the  servile  class, 
the  desired  offspring  may  be  procreated,  either  by  his  brother  or  some 
other  sapinda,  on  the  wife,  who  has  been  duly  authorized. 

60.  "Sprinkled  with  clarified  butter,  silent,  in  the  night,  let  the  kins- 
man thus  appointed  beget  one  son,  but  a  second  by  no  means,  on 
the  widow  or  childless  wife : 

77.  "For  a  whole  year  let  a  husband  bear  with  his  wife,  who  treats 
him  with  aversion;  but  after  a  year,  let  him  deprive  her  of  her  separate 
property,    and    cease   to    cohabit    with    her, 

78.  "She,  who  neglects  her  lord,  though  addicted  to  gaming,  fond  of 
spirituous  liquors,  or  diseased,  must  be  deserted  for  three  months,  and 
deprived  of  her  ornaments  and  household  furniture : 

79.  "But  she,  who  is  averse  from  a  mad  husband,  or  a  deadly  sinner, 
or  an  eunuch,  or  one  without  manly  strength,  or  one  afflicted  with  such 
maladies  as  punish  crimes,  must  neither  be  deserted  nor  stripped  of 
her  property. 

80.  "A  wife  who  drinks  any  spirituous  liquors,  who  acts  immorally, 
who  shows  hatred  to  her  lord,  who  is  incurably  diseased,  who  is  mis- 
chievous, who  wastes  his  property,  may  at  all  times  be  superseded  by 
another  wife. 

81  "A  barren  wife  may  be  superseded  by  another  in  the  eighth  year: 
she,  whose  children  are  all  dead,  in  the  tenth;  she,  who  brings  forth 
only  daughters,  in  the  eleventh ;  she,  who  speaks  unkindly,  without  delay ; 

82.  "But  she,  who,  though  afflicted  with  illness,  is  beloved  and  virtuous, 
must  never  be  disgraced,  though  she  may  be  superseded  by  another  wife 
with  her  own  consent. 

85.  "When  twice-born  men  take  wives,  both  of  their  own  class  and 
others,  the  precedence,  honour  and  habitation  of  those  wives,  must  be 
settled   according   to   the   order   of    their    classes: 

86.  "To  all  such  married  men,  the  wives  of  the  same  class  only  (not 
wives  of  a  different  class  by  any  means)  must  perform  the  duty  of 
personal  attendance,  and  the  daily  business  relating  to  acts  of  religion ; 

88.  "To  an  excellent  and  handsome  youth  of  the  same  class,  let  every 
man  give  his  daughter  in  marriage,  according  to  law ;  even  though  she 
have   not   attained   her   age   of   eight   years : 

89.  "But  it  is  better  that  the  damsel,  though  marriageable,  should  stay 
at  home  till  her  death,  than  that  he  should  ever  give  her  in  marriage 
to  a  bridegroom  void  of  excellent  qualities. 


I050  APPENDiIX 

90.  "Three  years  let  a  damsel  wait,  though  she  be  marriageable;  but, 
after  that  term,  let  her  choose  for  herself  a  bridegroom  of  equal  rank. 

91.  "If,  not  being  given  in  marriage,  she  choose  her  bridegroom, 
neither  she,  nor  the  youth  chosen,  commits  any  offense; 

92.  "But  a  damsel,  thus  electing  her  husband,  shall  not  carry  with  her 
the  ornaments,  which  she  received  from  her  father,  nor  those  given  by  her 
mother  or  brethren;   if  she  carry  them  away,  she  commits   theft. 

93.  "He,  who  takes  to  wife  a  damsel  of  full  age,  shall  not  give  a 
nuptial  present  to  her  father;  since  the  father  lost  the  dominion  over 
her,  by  detaining  her  at  a  time,  when  she  might  have  been  a  parent. 

94.  "A  man,  aged  thirty  years,  may  marry  a  girl  of  twelve,  if  he  find 
one  dear  to  his  heart;  or  a  man  of  twenty- four  years,  a  damsel  of 
eight:  but,  if  he  finish  his  studentship  earlier,  and  the  duties  of  his 
next  order  would  otherwise  be  impeded,  let  him  marry  immediately. 

loi.  "Let  mutual  fidelity  continue  to  death :"  this  in  few  words, 
may  be  considered  as  the  supreme  law  between  husband  and  wife. 

104.  "After  the  death  of  the  father  and  the  mother,  the  brothers  being 
assembled,  may  divide  among  themselves  the  paternal  and  maternal  estate ; 
but  they  have  no  power  over  it,  while  their  parents  live,  unless  the 
father  choose   to   distribute   it. 

105.  "The  eldest  brother  may  take  entire  possession  of*  the  patrimony ; 
and  the  others  may  live  under  him,  as  they  lived  under  their  father, 
unless  they  choose  to  be  separated. 

108.  "Let  the  father  alone  support  his  sons;- and  the  first-born,  his 
younger  brothers;  and  let  them  behave  to  the  eldest,  according  to  law, 
as  children  should  behave  to  their  father. 

III.  "Either  let  them  thus  live  together,  or,  if  they  desire  separately 
to  perform  religious  rites,  let  them  live  apart;  since  religious  duties  are 
multiplied  in  separate  houses,  their  separation  is,  therefore,  legal  and 
even  laudable. 

112.  "The  portion  deducted  for  the  eldest  is  a  twentieth  part  of  the 
heritage,  with  the  best  of  all  the  chattels;  for  the  middlemost,  half  of 
that,  or  a  fortieth;  for  the  youngest  a  quarter  of  it,  or  an  eightieth. 

113.  "The  eldest  and  youngest  respectively  take  their  just  mentioned 
portions;  and,  if  there  be  more  than  one  between  them,  each  of  the 
intermediate    sons    has    the    mean    portion    of    the    fortieth. 

117.  "Let  the  eldest  have  a  double  share,  and  the  next  born,  a  share 
and  a  half,  if  they  clearly  surpass  the  rest  in  virtue  and  learning;  the 
younger  sons  must  have  each  a  share;  if  all  be  equal  in  good  qualities, 
they  must  all  take  share  and  share  alike. 

118.  "To  the  unmarried  daughters  by  the  same  mother,  let  their  brothers 
give  portions  out  of  their  own  allotments  respectively,  according  to  the 
classes  of  their  several  mothers :  let  each  give  a  fourth  part  of  his  own 
distinct  share;  and  they,  who   refuse  to  give   it,   shall  be   degraded. 


CODE   OF   MANU  1051 

119.  ''Let  them  never  divide  the  value  of  a  single  goat  or  sheep,  or 
a  single  beast  with  uncloven  hoofs;  a  single  goat  or  sheep  remaining 
after  an  equal  distribution,  belongs  to  the  first  born. 

120.  "Should  a  younger  brother,  in  the  manner  before  mentioned, 
have  begotten  a  son  on  the  wife  of  his  deceased  elder  brother,  the 
division  must  then  be  made  equally  between  that  son,  who  represents  the 
deceased,  and  his  natural  father:  thus  is  the  law  settled. 

127.  "He,  who  has  no  son,  may  appoint  his  daughter  in  this  manner 
to  raise  up  a  son  for  him,  saying :  "the  male  child,  who  shall  be  born 
from  her  in  wedlock,  shall  be  mine  for  the  purpose  of  performing  my 
obsequies." 

131.  "Property  given  to  the  mother  on  her  marriage,  is  inherited  by 
her  unmarried  daughter;  and  the  son  of  a  daughter,  appointed  in  the 
manner  just  mentioned,  shall  inherit  the  whole  estate  of  Her  father, 
who  leaves  no  son  by  himself  begotten: 

134.  "But,  a  daughter  having  been  appointed  to  produce  a  son  for  her 
father,  and  a  son  begotten  by  himself,  being  afterwards  born,  the  division 
of  the  heritage  must  in  that  case  be  equal;  since  there  is  no  right  of 
primogeniture    for   a   woman. 

137-  "By  a  son,  a  man  obtains  victory  over  all  people;  by  a  son's 
son,  he  enjoys  immortality;  and  afterwards,  by  the  son  of  that  grandson, 
he  reaches  the  solar  abode. 

149.  "If  there  be  four  wives  of  a  Brahman  in  the  direct  order  of  the 
classes,  and  sons  are  produced  by  them  all,  this  is  the  rule  of  partition 
among  them : 

150.  "The  chief  servant  in  husbandry,  the  bull  kept  for  impregnating 
cows,  the  riding-horse  or  carriage,  the  ring  and  other  ornaments,  and 
the  principal  messuage,  shall  be  deducted  from  the  inheritance  and  given 
to  the  Brahman-son,  together  with  a  larger  share  by  way  of  pre-eminence. 

151.  "Let  the  Brahman  take  three  shares  of  the  residue;  the  son  of 
the  Cshatriya-wife,  two  shares;  the  son  of  the  Vaisya-wife,  a  share  and 
a  half;  and  the  son  of  the  Sudra-wife,  may  take  one  share. 

152.  "Or,  if  no  deduction  be  made,  let  some  person  learned  in  the 
law  divide  the  whole  collected  estate  into  ten  parts,  and  make  a  legal 
distribution   by  this    following  rule: 

153.  "Let  the  son  of  the  Brahmani  take  four  parts;  the  son  of  the 
Cshatriya  three;  let  the  son  of  the  Vaisya  have  two  parts;  let  the  son 
of   the   Sudra  take  a   single   part,  if   he  be   virtuous. 

154.  "But  whether  the  Brahman  have  sons,  or  have  no  sons,  by  wives 
of  the  three  first  classes,  no  more  than  a  tenth  part  must  be  given  to 
the  son  of  a  Sudra. 

155.  "The  son  of  a  Brahman,  a  Cshatriya,  or  a  Vaisya  or  a  woman 
of  the  servile  class,  shall  inherit  no  part  of  the  estate,  unless  he  be 
virtuous ;  nor  jointly  with  other  sons,  unless  his  mother  was  lawfully 
married :  whatever  his  father  may  give  him,  let  that  be  his  own. 


I052  APPENDIX 

156.  "All  the  sons  of  twice-born  men,  produced  by  wives  of  the  same 
class,  must  divide  the  heritage  equally,  after  the  younger  brothers  have 
given  the  first-born  his  deducted  allotment. 

157.  "For  a  Sudra  is  ordained  a  wife  of  his  own  class,  and  no  other: 
all,  produced  by  her,  shall  have  equal  shares,  though  she  have  a  hundred 
sons. 

158.  Of  the  twelve  sons  of  men,  whom  Manu,  sprung  from  the  Self- 
existent,  has  named,  six  are  kinsmen  and  heirs ;  six,  not  heirs,  except 
to  their  own  fathers,  but  kinsmen. 

159.  "The  son  begotten  by  a  man  himself  in  lawful  wedlock,  the  son 
of  his  wife  begotten  in  the  manner  before  described,  a  son  given  to 
him,  a  son  made  or  adopted,  a  son  of  concealed  birth,  or  whose  real 
father  cannot  be  known,  and  a  son  rejected  by  his  natural  parents,  are 
the  six  kinsmen  and  heirs : 

160.  "The  son  of  a  young  woman  unmarried,  the  son  of  a  pregnant 
bride,  a  son  bought,  a  son  by  a  twice-married  woman,  a  son  self-given, 
and  a  son  by  a  Sudra,  are  the  six  kinsmen,  but  not  heirs  to  collaterals. 

161.  "Such  advantage,  as  a  man  would  gain,  who  should  attempt  to 
pass  deep  water  in  a  boat  made  of  woven  reeds,  that  father  obtains, 
who  passes  the  gloom  of  death,  leaving  only  contemptible  sons,  who 
are  the  eleven,  or  at  least  the  six  last  mentioned. 

182.  "If,  among  several  brothers  of  the  whole  blood,  one  have  a  son 
born,  Manu  pronounces  them  all  fathers  of  a  male  child  by  means  of  that 
son ;  so  that,  if  such  nephew  would  be  the  heir,  the  uncles  have  no  power 
to   adopt   sons : 

183.  "Thus  if,  among  all  the  wives  of  the  same  husband,  one  bring  forth 
a  male  child,  Manu  has  declared  them  all,  by  means  of  that  son  to  be 
mothers   of   male   issue. 

184.  "On  failure  of  the  best,  and  of  the  next  best,  among  those 
twelve  sons,  let  the  inferior  in  order  take  the  heritage;  but,  if  there 
be  many  of  equal  rank  let  all  be  sharers  of  the  estate. 

185.  "Not  brothers,  nor  parents,  but  sons,  if  living,  or  their  male 
issue  are  heirs  to  the  deceased,  but  of  him,  who  leaves  no  son,  nor  a 
wife,  nor  a  daughter,  the  father  shall  take  the  inheritance;  and,  if  he 
leave   neither    father,    nor   mother,   the   brothers. 

187.  "To  the  nearest  sapinda,  male  or  female,  after  him  in  the  third 
degree,  the  inheritance  next  belongs ;  then,  on  failure  of  sapindas  and 
of  their  issue,  the  samdnodaca,  or  distant  kinsman,  shall  be  the  heir; 
or  the  spiritual  preceptor,  or  the  pupil,  or  the  fellow-student,  of  the 
deceased : 

188.  "On  failure  of  all  those,  the  lawful  heirs  are  such  Brahmans 
as  have  read  the  three  Vedas,  as  are  pure  in  body  and  mind,  as  have 
studied  their  passions ;  and  they  must  consequently  offer  the  cake : 
thus  the  rites  of  obsequies  cannot  fail. 


CODE  OF   MAXU  1053 

189.  "The  property  of  a  Brahman  shall  never  be  taken  as  an  eschea: 
ty  the  king;  this  is  fixed  law;  but  the  wealth  of  the  other  classes  on 
failure  of  all  heirs,  the  king  may  take. 

192.  "On  the  death  of  the  mother,  let  all  the  uterine  brothers  and 
the  uterine  sisters,  if  unmarried,  equally  divide  the  maternal  estate: 
each   married  sister   shall  have   a   fourth  part   of  a   brother's   allotment. 

193.  "Even  to  the  daughters  of  those  daughters,  it  is  fit,  that  some- 
thing should  be  given  from  the  assets  of  the  maternal  grandmother, 
on  the  score  of  natural  affection. 

194.  "What  was  given  before  the  nuptial  fire,  what  was  given  on  the 
l)ridal  procession,  what  was  given  in  token  of  love,  and  what  was 
received  from  a  brother,  a  mother,  or  a  father,  are  considered  as  the 
sixfold  separate  property  of  a  married  woman. 

195.  "What  she  received  after  marriage  from  the  family  of  her  hus- 
band, and  what  her  affectionate  lord  may  have  given  her,  shall  be 
inherited,   even   if   she  die   in   his   lifetime,   by  her   children. 

196.  "It  is  ordained,  that  the  property  of  a  woman,  married  by  the 
-ceremonies  called  Brahma,  Daiva,  Arsha,  Gdndharva,  or  Prajdpdtya,  shall 
go  to  her  husband,  if  she  die  without  issue. 

197.  "But  her  wealth  given  on  the  marriage  called  Asura,  or  on  either 
•of  the  two  others,  is  ordained,  on  her  death  without  issue,  to  become 
the  property  of  her  father  and  mother. 

201.  "Eunuchs  and  outcasts,  persons  born  blind  or  deaf,  madmen, 
idiots,  the  dumb,  and  such  as  have  lost  the  use  of  a  limb,  are  excluded 
irom  a  share  of  the  heritage; 

202.  "But  it  is  just,  that  the  heir,  who  knows  his  duty,  should  give 
all  of  them  food  and  raiment  for  life  without  stint,  according  to  the 
best  of  his  power:  he,  who  gives  them  nothing,  sinks  assuredly  to  a 
region  of  punishment." 

Many  other  rules  of  inheritance  in  special  cases  are  given. 

224.  "Let  the  king  punish  corporally  at  discretion,  both  the  gamester 
and  the  keeper  of  a  gaming-house,  whether  they  play  with  inanimate  or 
animate  things ;  and  men  of  the  servile  class,  who  wear  the  string  and 
other  marks   of  the  twice-born. 

225.  "Gamesters,  public  dancers  and  singers,  revilers  of  scripture, 
open  heretics,  men  who  perform  not  the  duties  of  their  several  classes; 
and  sellers  of  spirituous  liquor,  let  him  instantly  banish  from  the  town : 

230.  "For  women,  children,  persons  of  crazy  intellect,  the  old,  the 
poor,  and  the  infirm,  the  king  shall  order  punishment  with  a  small  whip, 
a  twig,  or  a  rope. 

232.  "Such  as  forge  royal  edicts,  cause  dissensions  among  the  great 
ministers,  or  kill  women,  priests,  or  children,  let  the  king  put  to  death; 
and  such,  as  adhere  to  his  enemies." 

Following   these   sections   comes   a   miscellaneous   list   of   offenses    for 


1054  APPENDIX 

which  fines  and  punishments  are  prescribed.  The  duty  of  the  king  tO' 
cause  the  detection  of  crimes  and  the  punishment  of  criminals  is  declared 
and  the  use  of  spies   is  recommended, 

2y6.  "Of  robbers,  who  break  a  wall  or  partition,  and  commit  theft 
in  the  night,  let  the  prince  order  the  hands  to  be  lopped  off,  and  themselves 
to  be  ifixed  on  a  sharp  stake. 

2yy.  "Two  fingers  of  a  cutpurse,  the  thumb  and  the  index,  let  him 
cause  to  be  amputated  on  his  first  conviction;  on  the  second,  one  hand 
and  one  foot;  on  the  third,  he  shall  suffer  death. 

2y^.  "Such,  as  give  thieves  fire,  such  as  give  them  food,  such  as 
give  them  arms  and  apartments,  and  such  as  knowingly  receive  a  thing 
stolen,  let  the  king  punish  as  he  would  punish  a  thief. 

280.  "Those,  who  break  open  the  treasury,  or  the  arsenal,  or  the 
temple  of  a  deity,  and  those,  who  carry  off  royal  elephants,  horses,  or 
cars,   let  him   without  hesitation   destroy. 

287.  "The  man,  who  shall  deal  unjustly  with  purchasers  at  a  fair 
price  by  delivering  goods  of  less  value,  or  sell  at  a  high  price  goods 
of  ordinary  value,  shall  pay,  according  to  circumstances,  the  lowest  or 
the   middle  amercement. 

290.  "For  all  sacrifices  to  destroy  innocent  men,  the  punishment  is  a 
fine  of  two  hundred  panas;  and  for  machinations  with  poisonous  roots,, 
and  for  various  charms  and  witcheries  intended  to  kill,  by  persons  not 
effecting  their  purpose. 

292.  "But  the  most  pernicious  of  all  deceivers  is  a  goldsmith,  who 
commits  frauds :  the  king  shall  order  him  to  be  cut  piecemeal  with  razors." 

After  these  rules  for  the  punishment  of  crime  there  is  an  abrupt 
change  of  subject  to  a  consideration  of  the  powers  and  duties  of  a  king. 

301.  "All  the  ages,  called  Satya,  Treta,  Dwdpara,  and  Cali,  depend  on 
the  conduct  of  the  king;  who  is  declared  in  turn  to  represent  each  of 
those    ages. 

302.  "Sleeping,  he  is  the  Cali  age;  waking,  the  Dwapara;  exerting 
himself  in  action,  the  Treta;  living  virtuously,  the  Satya. 

313.  "Let  him  not,  although  in  the  greatest  distress  for  money,  provoke 
Brahmans  to  anger  by  taking  their  property;  for  they,  once  enraged, 
could  immediately  by  sacrifices  and  imprecations  destroy  him  with  his 
troops,  elephants,  horses  and  cars. 

314.  "Who,  without  perishing,  could  provoke  those  holy  men,  by 
whom,  that  is,  by  whose  ancestors,  under  Brahma,  the  all-devouring 
fire  was  created,  the  sea  with  waters  not  drinkable,  and  the  moon  with 
its  wane  and  increase? 

320.  "Of  a  military  man,  who  raises  his  arm  violently  on  all  occasions 
against  the  priestly  class,  the  priest  himself  shall  be  the  chastiser;  since 
the  soldier  originally  proceeded  from  the  Brahman. 

326.    Let  the  Vaisya,  having  been  girt  with  his  proper  sacrificial  thread, 


CODE   OF   MANU  1055 

and  having  married  an  equal  wife,  be  always  attentive  to  his  business  of 
agriculture  and  trade,  and  to  that  of  keeping  cattle; 

Z27.  "Since  the  lord  of  created  beings,  having  formed  herds,  and  flocks, 
intrusted  them  to  the  care  of  the  Vaisya,  while  he  intrusted  the  whole 
human  species,  to  the  Brahman  and  the  Cshatriya : 

329.  "Of  gems,  pearls,  and  coral,  of  iron,  of  woven  cloth,  of  per- 
fumes and  of  liquids,  let  him  well  know  the  prices  both  high  and  low. 

330.  "Let  him  be  skilled  likewise  in  the  time  and  manner  of  sowing 
seeds,  and  in  the  bad  or  good  qualities  of  land;  let  him  also  perfectly 
know  the  correct  modes   of  measuring  and  weighing. 

331.  "The  excellence  or  defects  of  commodities,  the  advantages  and 
disadvantages  of  different  regions,  the  probable  gain  or  loss  on  vendible 
goods,   and   the   means   of   breeding   cattle   with   large   augmentation. 

332.  "Let  him  know  the  just  wages  of  servants,  the  various  dialects 
of  men,  the  best  way  of  keeping  goods,  and  whatever  else  belongs  to 
purchase  and  sale. 

ZZZ-  "Let  him  apply  the  most  vigilent  care  to  augment  his  wealth  by 
performing  his  duty;  and,  with  great  solicitude,  let  him  give  nourishment 
to  all  sentient  creatures. 

334.  "Servile  attendance  on  Brahmans  learned  in  the  Veda,  chiefly 
on  such  as  keep  house  and  are  famed  for  virtue,  is  of  itself  the  highest 
duty  of  a  Sudra,  and  leads  him  to  future  beatitude. 

335.  "Pure  in  body  and  mind,  humbly  serving  the  three  higher  classes, 
mild  in  speech,  never  arrogant,  ever  seeking  refuge  in  Brahmans  prin- 
cipally, he  may  attain  the  most  eminent  class  in  another  transmigration! 

Chapter  10  is  "On  the  Mixed  Classes ;  and  on  Times  of  Distress." 

4.  "The  three  twice-born  classes  are  the  sacerdotal,  the  military,  and 
the  commercial ;  but  the  fourth,  or  servile,  is  once-born,  that  is,  has 
no  second  birth  from  the  gayatri,  and  wears  no  thread :  nor  is  there 
a   fifth  pure   class. 

5.  "In  all  classes  they,  and  they  only,  who  are  born  in  a  direct  order, 
of  wives  equal  in  class  and  virgins  at  the  time  of  marriage,  are  to  be 
considered  as  the  same  in  class  with  their  fathers": 

Here  follows  an  account  of  the  origin  of  the  various  sub  or  impure 
castes  by  intermarriages  of  members  of  the  different  castes  and  sub-castes 
and  a  designation  of  their  several  occupations. 

12.  "From  a  Sudra,  on  women  of  the  commercial,  military,  and  priestly 
class,  are  born  sons  of  a  mixed  breed,  called  Ayogava,  Cshattri  and 
Chandala,  the  lowest  of  mortals. 

38.  "From  a  Chandala  by  a  Pucassi  woman,  is  born  a  Sopaca  who  lives 
by  punishing  criminals,  condemned  by  the  king,  a  sinful  wretch  ever 
despised  by  the  virtuous. 

42.  "By  the  force  of  extreme  devotion  and  of  exalted  fathers,  all  of 
them  may  rise  in  time  to  high  birth,  as  by  the  reverse  they  may  sink  to 
a  lower  state,  in  every  age  among  mortals  in  this  inferior  world. 


ios6  APPENDIX 

45.  "All  those  tribes  of  men,  who  sprang  from  the  mouth,  the  arm, 
the  thigh,  and  the  foot  of  Brahma,  but  who  became  outcasts  by  having 
neglected  their  duties,  and  called  Dasyus,  or  plunderers,  w'hether  they 
speak  the  language  of  Mlech'chhas,  or  that  of  Aryas. 

46.  "Those  sons  of  the  twice-born  who  are  said  to  be  degraded,  and 
who  are  considered  as  low-born,  shall  subsist  only  by  such  employments, 
as   the   twice-born   despise. 

64.  "Should  the  tribe,  sprung  from  a  Brahman,  by  a  Sudra-woman, 
produce  a  succession  of  children  by  the  marriages  of  its  women  with 
other  Brahmans,  the  low  tribe  shall  be  raised  to  the  highest  in  the 
seventh  generation. 

65.  "As  the  son  of  a  Sudra  may  thus  attain  the  rank  of  Brahman, 
and  as  the  son  of  a  Brahman  may  sink  to  a  level  with  Sudras,  even  so 
must  it  be  with  him,  who  springs  from  Cshatriya;  even  so  with  him 
who  was  born  of  a  Vaisya. 

74.  "Let  such  Brahmans  as  are  intent  on  the  means  of  attaining  the 
supreme  god-head,  and  firm  in  their  own  duties,  completely  perform, 
in  order,  the  six  following  acts: 

75.  "Reading  the  Vedas,  and  teaching  others  to  read  them,  sacrificing, 
and  assisting  others  to  sacrifice,  giving  to  the  poor,  if  themselves  have 
enough,  and  accepting  gifts  from  the  virtuous  if  themselves  are  poor, 
are  the  six  prescribed  acts  of  the  first-born  class. 

"/(y.  "But.  among  those  six  acts  of  a  Brahman,  three  are  his  means 
of  subsistence ;  assisting  to  sacrifice,  teaching  the  Vedas,  and  receiving 
gifts  from  a  pure  handed  giver, 

Tj.  "Three  acts  of  duty  cease  with  the  Brahman,  and  belong  not  to 
the  Cshatriya;  teaching  the  Vedas,  officiating  at  a  sacrifice,  and,  thirdly, 
receiving  presents: 

78.  "Those  three  are  also  (by  the  fixed  rule  of  law)  forbidden  to  the 
Vaisya;  since  Manu,  the  lord  of  all  men,  prescribed  not  those  acts  to 
the  two  classes,  military  and  commercial. 

79.  "The  means  of  subsistence  peculiar  to  the  Cshatriya,  are  bearing 
arms,  either  held  for  striking  or  missile,  to  the  Vaisya,  merchandise, 
attending  on  cattle,  and  agriculture :  but  with  a  view  to  the  next  life, 
the  duties  of  both  are  almsgiving,  reading,  sacrificing." 

A  statement  is  then  given  in  detail  of  the  occupations  that  may  be 
followed  by  the  twice-born  in  cases  of  necessity,  where  they  are  unable 
to  live  in  the  manner  appropriate  to  their  respective  castes. 

115.  "There  are  seven  virtuous  means  of  acquiring  property,  succession, 
occupancy  or  donation,  and  purchase  or  exchange,  which  are  allowed 
to  all  classes ;  conquest,  which  is  peculiar  to  the  military  class ;  lending 
at  interest,  husbandry  or  commerce,  which  belong  to  the  mercantile 
class ;  and  acceptance  of  presents,  by  the  sacerdotal  class,  from  respectable 


CODE  OF  MANU  1057 

116.  "Learning,  except  that  contained  in  the  scriptures,  arts,  as  mixing 
perfumes  and  the  like,  work  for  wages,  menial  service,  attendence  on 
cattle,  traffick,  agriculture,  content  with  little,  alms,  and  receiving  high 
interest  on  money,  are  ten  modes  of  subsistence  in  times  of  distress. 

117.  "Neither  a  priest  nor  a  military  man,  though  distressed,  must  re- 
ceive interest  on  loans,  but  each  of  them,  if  he  please,  may  pay  the 
small  interest  permitted  by  law,  on  borrowing  for  some  pious  use,  to  the 
sinful  man,  who  demands  it. 

120.  "The  tax  on  the  mercantile  class,  which  in  times  of  prpsperity 
must  be  only  a  twelfth  part  of  their  crops,  and  a  fifteenth  of  their 
personal  profits,  may  be- an  eighth  of  their  crops  in  a  time  of  distress, 
or  a  sixth,  which  is  the  medium,  or  even  a  fourth  in  great  publick  ad- 
versity; but  a  twentieth  of  their  gains  on  money,  and  other  movables, 
is  the  highest  tax ;  serving  men  artisans,  and  mechanics  rtiust  assist 
by  their  labour,  but  at  no  time  pay  taxes. 

129.  "No  superfluous  collection  of  wealth  must  be  made  by  a  Sudra^ 
even  though  he  has  power  to  make  it,  since  a  servile  man,  who  has 
amassed  riches,  becomes  proud,  and,  by  his  insolence  or  neglect,  gives 
pain   even   to   Brahmans. 

Chapten  11  is  "On  Penance  and  Expiation."  Penances  are  prescribed 
as  religious  observances  for  the  good  of  the  individual  and  to  relieve 
him  from  the  degradation  resulting  fom  his  transgression.  Some  other 
matters  are  treated  of  in  the  chapter. 

1.  "Him,  who  intends  to  marry  for  the  sake  of  having  issue;  him, 
who  wishes  to  make  a  sacrifice;  him,  who  travels;  him,  who  has  given 
all  his  wealth  at  a  sacred  rite;  him,  who  desires  to  maintain  his  pre- 
ceptor ;  his  father,  or  his  mother ;  him,  who  needs  a  maintenance  for 
himself,  when  he  first  reads  the  Vedas ;  and  him,  who  is  afflicted  with 
illness ; 

2.  These  nine  Brahmans  let  mankind  consider  as  virtuous  mendicants^ 
called  sndtacas;  and,  to  relieve  their  wants,  let  gifts  of  cattle  or  gold 
be  presented  to  them  in  proportion  to  their  learning. 

3.  "To  these  most  excellent  Brahmans  must  rice  also  be  given,  with 
holy  presents  at  oblations  to  fire  and  within  the  consecrated  circle;  but 
the  dressed  rice,  which  others  are  to  receive,  must  be  delivered  on  the 
outside  of  the  sacred  hearth;  gold  and  the  like  may  be  given  anywhere. 

4.  "On  such  Brahman  as  well  known  the  Veda,  let  the  king  bestow, 
as  it  becomes  him,  jewels  of  all  sorts,  and  the  solemn  reward  for 
officiating  at  the   sacrifice. 

9.  "He,  who  bestows  gifts  on  strangers,  with  a  view  to  wordly  fame, 
while  he  suffers  his  family  to  live  in  distress,  though  he  has  power 
to  support  them,  touches  his  lips  with  honey,  but  swallows  poison; 
such   virtue   is   counterfeit: 

10.  "Even  what  he  does  for  the  sake  of  his  future  spiritual  body  to 


1058  APPENDIX 

the    injury   of    those,   whom   he   is   bound   to   maintain,    shall   bring   him 
ultimate  misery  both  in  this  life  and  in  the  next." 

Where  a  sacrifice  is  to  be  performed  and  some  necessary  article  is 
lacking  the  Brahman  performing  the  sacrifice  is  authorized  to  take  it 
from  one  having  sufficient  possessions. 

34.  "A  soldier  may  avert  danger  from  himself  by  the  strength  of 
his  arm ;  a  merchant  and  a  mechanic,  by  their  property ;  but  the  chief 
of  the  twice-born,  by  holy  texts  and  oblations  to  fire. 

Z6.  "Let  not  a  girl  nor  a  young  woman  married  or  unmarried,  nor 
a  man  with  little  learning,  nor  a  dunce,  perform  an  oblation  to  fire;,  nor 
a  man  diseased,  nor  one  uninvested  with  the  sacrificial  string; 

40.  "The  organs  of  sense  and  action,  reputation  in  this  life,  a  heavenly 
mansion  in  the  next,  life  itself,  a  great  name  after  death,  children  and 
cattle,  are  all  destroyed  by  a  sacrifice  offered  with  trifling  presents : 
let  nf)  man,  therefore,  sacrifice  without  liberal  gifts. 

69.  "To  kill  an  ass,  a  horse,  a  camel,  a  deer,  an  elephant,  a  goat, 
a  sheep,  a  fish,  a  snake,  or  a  buffalo,  is  declared  an  offense,  which 
degrades  the  killer  to  a  mixed  tribe. 

70.  "Accepting  presents  from  despicaible  men,  illegal  traffic,  attendance 
on  a  Sudra  master,  and  speaking  falsehood,  must  be  considered  as 
causes  of  exclusion  from  social  repasts. 

71.  "Killing  an  insect,  small  or  large,  a  worm,  or  a  bird,  eating  what 
has  been  brought  in  the  same  basket  with  spirituous  liquor,  stealing 
fruit,  or  flowers,  and  great  perturbation  of  mind  on  trifling  occasions, 
are   offenses   which   cause   defilement. 

94.  "Since  the  spirit  of  rice  is  distilled  from  the  Mala,  or  filthy  refuse 
of  the  grain,  and  since  Mala  is  also  a  name  for  sin,  let  no  Brahman, 
Cshatriya  or   Vaisya   drink  that  spirit. 

95.  "Inebriating  liquor  may  be  considered  as  of  three  principal  sorts : 
that  extracted  from  dregs  of  sugar,  that  extracted  from  bruised  rice, 
and  that  extracted  from  the  flowers  of  the  Madhuca  as  one,  so  are  all; 
they  shall  not  be  tasted  by  the  chief  of  the  twice-born. 

98.  "When  the  divine  spirit,  or  the  light  of  the  holy  knowledge,  which 
has  been  infused  into  his  body,  has  once  been  sprinkled  with  any  in- 
toxicating liquor,  even  his  priestly  character  leaves  him,  and  he  sinks 
to  the  low  degree  of  a  Sudra. 

127.  "For  killing  intentionally  a  virtuous  man  of  the  military  class, 
the  penance  must  be  a  fourth  part  of  that  ordained  for  killing  a  priest; 
for  killing  a  Vaisya,  only  an  eighth;  for  killing  a  Sudra,  who  had  been 
constant  in  discharging  his  duties,  a  sixteenth  part. 

132.  "If  he  kill  by  design  a  cat,  or  an  ichneumon,  the  bird  Chdsa,  or  a 
frog,  a  dog,  a  lizard,  an  owl,  or  a  crow,  he  must  perform  the  ordinary 
penance  required  for  the  death  of  a  Sudra,  that  is  the  chdndrdyana." 

Penances  and  purifications  are  required  for  eating  prohibited  foods 
of  which  there  is  a  long  list. 


CODE  OF  MANU  1059 

166.  "For  taking  what  may  be  eaten,  or  what  may  be  sipped,  a  carriage, 
a  bed,  or  a  seat,  roots,  flowers,  or  fruit,  an  atonement  may  be  made  by 
swallowing  the  five  pure  things  produced  by  a  cow,  or  milk,  curds, 
butter,  urine,  dung: 

211.  "Those  penances,  by  which  a  man  may  atone  for  his  crimes,  I 
now  will  describe  to  you;  penances,  which  have  been  performed  by 
deities,  by  holy  sages,  and  by  forefathers  of  the  human  race. 

212.  "When  a  twice-born  man  performs  the  common  penance,  or  that 
of  Prajdpati,  he  must  for  three  days  eat  only  in  the  morning;  for  three 

days,  only  in  the  evening;  for  three  days,  food  unasked  but  presented  to 
him;  and  for  three  more  days  nothing. 

213.  "Eating  for  a  whole  day  the  dung  and  urine  of  cows  mixed 
with  curds,  milk,  clarified  butter,  and  water  boiled  with  cusa-grass, 
and  then  fasting  entirely  for  a  day  and  a  night,  is  the  penance  called 
Sdntapana  (either  from  the  devout  man  Sdntapana,  or  from  tormenting). 

214.  "A  twice-born  man  performing  the  penance,  called  very  severe, 
in  respect  of  the  common,  must  eat,  as  before,  a  single  mouthful,  or  a 
ball  of  rice  as  large  as  a  hen's  egg,  for  three  times  three  days ;  and  for 
the  last  three  days,  must  wholly  abstain   from   food. 

215.  "A  Brahman,  performing  the  ardent  penance,  must  swallow  noth- 
ing but  hot  water,  hot  milk,  hot  clarified  butter,  and  hot  steam,  each  of 
them  for  three  days  successively,  performing  an  ablution  and  mortifying 
all  his   members. 

216.  "A  total  fast  for  twelve  days  and  nights,  by  a  penitent  with  his 
organs  controlled  and  his  mind  attentive,  is  the  penance  named  pardca, 
which   expiates  all   degrees  of  guilt. 

217.  "If  he  diminish  his  food  by  one  mouthful  each  day,  during  the 
dark  fortnight,  eating  fifteen  mouthfuls  on  the  day  of  the  opposition, 
and  increase  it,  in  the  same  proportion,  during  the  bright  fortnight, 
fasting  entirely  on  the  day  of  the  conjunction,  and  perform  an  ablution 
regularly  at  sunrise,  noon,  and  sunset,  this  is  the  chdndrdyana,  or  the 
lunar  penance : 

218.  "Such  is  the  penance  called  ant-shaped  or  narrow  in  the  middle; 
but,  if  he  perform  the  barley  shaped,  or  broad  in  the  middle,  he  must 
observe  the  same  rule,  beginning  with  the  bright  half-month,  and  keeping 
tinder  command  his  organs  of  action  and  sense. 

223.  "The  oblation  of  clarified  butter  to  fire  must  every  day  be  made 
by  the  penitent  himself,  accompanied  with  the  mighty  words,  earth,  sky, 
heaven ;  he  must  perfectly  abstain  from  injury  to  sentient  creatures, 
from  falsehood,  from  wrath,  and  from  all  crooked  ways. 

224.  "Or,  thrice  each  day,  and  thrice  each  night  for  a  month,  the 
penitent  may  plunge  into  water  clothed   in  his   mantle,  and  at  no  time 

conversing  with  a  woman,  a  Sudra,  or  an  outcast. 

225.  "Let  him  be  always  in  motion,  sitting  and  rising  alternately,  or, 


io6o  APPENDIX 

if  unable  to  be  thus  restless,  let  him  sleep  low  on  the  bare  ground; 
chaste  as  a  student  of  the  Veda,  bearing  the  sacred  Zone  and  staff,, 
showing  reverence  to  his  preceptor,  to  the  gods,  and  to  priests. 

226.  "Perpetually  must  he  repeat  the  Gdyatri,  and  other  pure  texts 
to  the  best  of  his  knowledge:  thus  in  all  penances  for  absolution  from 
sin,  must  he  vigilantly  employ  himself. 

229.  "In  proportion  as  a  man,  who  has  committed  a  sin,  shall  truly 
and  voluntarily  confess  it,  so  far  he  is  disengaged  from  that  offense, 
like  a  snake  from  his  slough; 

230.  "And,  in  proportion  as  his  heart  sincerely  loathes  his  evil  deed, 
so   far  shall  his   vital   spirit  be   freed   from  the  taint  of   it. 

235.  All  the  bliss  of  deities  and  of  men  is  declared  by  sages,  who 
discern  the  sense  of  the  Veda,  to  have  in  devotion  its  cause,  in  devotion 
its  continuance,  in  devotion  its   fulness. 

236.  ''Devotion  is  equal  to  the  performance  of  all  duties;  it  is  divine 
knowledge  in  a  Brahman;  it  is  defense  of  the  people  in  a  Cshatriya; 
devotion  is  the  business  of  trade  and  agriculture  in  a  Vaisya;  devotion 
is  dutiful  service  in  a  Sudra. 

244.  "Even  Brahma,  lord  of  creatures,  by  devotion  enacted  this  code  of 
laws;   and   the   sages   by   devotion   acquired   a  knowledge   of   the   Vedas. 

245.  "Thus  the  gods  themselves,  observing  in  this  universe  the  incom- 
parable power  of  devotion,  have  proclaimed  aloud  the  transcendent 
excellence   of   pious   austerity. 

249.  "Sixteen  suppressions  of  the  breath,  while  the  holiest  of  texts 
is  repeated  with  the  three  mighty  words,  and  the  trilateral  syllable,  con- 
tinued each  day  for  a  month,  absolve  even  the  slayer  of  a  Brahman 
from  his  hidden  faults. 

250.  "Even  a  drinker  of  spirituous  liquors  is  absolved  by  repeating 
each  day  the  text  apa  used  by  the  sage  Cautsa,  or  that  beginning  with 
preti  used  by  Vasishtha,  or  that  •  called  mdhitra,  or  that,  of  which  the 
first  word  is  suddhavatyah. 

251.  "By  repeating  each  day  for  a  month  the  text  dsyavdmiya,  ot 
the  hymn  Sivasancacalpa,  the  stealer  of  gold  from  a  priest  becomes 
instantly  pure. 

262.  "A  priest  who  should  retain  in  his  memory  the  whole  Rigveda, 
would  be  absolved  from  guilt,  even  if  he  had  slain  the  inhabitants  of 
the   three   worlds,   and   had   eaten    food    from   the   foulest   hands. 

263.  "By  thrice  repeating  the  mantras  and  hrahmanas  of  the  Rich,  or 
those  of  the  YajusJi,  or  those  of  the  Saman,  with  the  Upanishads,  he 
shall  perfectly  be   cleansed   from   every  possible   taint. 

264.  "As  a  clod  of  earth,  cast  into  a  great  lake,  sinks  in  it,  thus  is 
every   sinful   act   submerged    in   the   triple   Veda. 

265.  "The  divisions  of  the  Rich,  the  several  branches  of  the  Yajush^ 
and  the  manifold  strains  of  the  Sdman  must  be  considered  as  forming: 
the  triple  Veda:  he  knows  the  Veda,  who  knows  them  collectively. 


CODE  OF  MANU  1061 

266.  "The  primary  triliteral  syllable,  in  which  the  three  Vedas  them- 
selves are  comprised,  must  be  kept  secret,  as  another  triple  Veda,  he 
who  knows  the  Veda,  who  distinctly  knows  the  mystic  sense  of  that 
word." 

The  1 2th  and  last  chapter  is  "On  Transmigration  and  Final  Beatitude." 

3.  "Action,  either  mental,  verbal,  or  corporal,  bears  good  or  evil 
fruit,  as  itself  is  good  or  evil;  and  from  the  actions  of  men  proceed 
their  various  transmigrations  in  the  highest,  the  mean,  and  the  lowest 
degree : 

4.  "Of  that  three-fold  action,  connected  with  bodily  functions,  disposed 
in  three  classes,  and  consisting  of  ten  orders,  be  it  known  in  this  world, 
that  the  heart  is  the  instigator. 

5.  ''Devising  means  to  appropriate  the  wealth  of  other  men,  resolving 
on  any  forbidden  deed,  and  conceiving  notions  of  atheism  or  materialism, 
are  tK'e  three  bad  acts  of  mind: 

6.  "Scurrilous  language,  falsehood,  indiscriminate  backbiting,  and 
useless  tattle,  are  the  four  bad  acts  of  the  tongue: 

7.  Taking  effects  not  given,  hurting  sentient  creatures  without  the 
sanction  of  law,  and  criminal  intercourse  with  the  wife  of  another,  are 
the  three  bad  acts  of  the  body;  and  all  the  ten  have  their  opposites 
which    are   good    in    an   equal    degree. 

8.  "A  rational  creature  has  a  reward  or  a  punishment  for  mental 
acts,  in  his  mind;  for  verbal  acts,  in  his  organs  of  speech;  for  corporal 
acts,  in  his  bodily  frame. 

9.  "For  sinful  acts  mostly  corporal,  a  man  shall  assume  after  death  a 
vegetable  or  mineral  form;  for  such  acts  mostly  verbal,  the  form  of  a 
bird  or  a  beast ;  for  acts  mostly  mental,  the  lowest  of  human  conditions : 

12.  "That  substance  which  gives  a  power  of  motion,  to  the  body,  the 
wise  call  cshetrajnya,  or  jivdtman,  the  vital  spirit;  and  that  body,  which 
thence  derives  active  functions,  they  name  hhiUdtman,  or  composed  of 
elements : 

13.  "Another  internal  spirit,  called  mahat,  or  the  great  soul,  attends 
the  birth  of  all  creatures  imbodied,  and  thence  in  all  mortal  forms  is 
conveyed    a   peception    either   pleasing   or    painful. 

14.  "Those  two,  the  vital  spirit  and  reasonable  soul,  are  closely  united 
with  five  elements,  but  connected  with  the  supreme  spirit,  or  divine 
essence,   which   pervades   all   beings   high   and   low: 

15.  "From  the  substance  of  that  supreme  spirit  are  diffused,  like  sparks 
from  fire,  innumerable  vital  spirits,  which  perpetually  give  motion  to 
creatures  exalted  and  base. 

16.  "By  the  vital  souls  of  those  men,  who  have  committed  sins  in  the 
body  reduced  to  ashes,  another  body,  composed  of  nerves  with  five 
sensations,  in  order  to  be  susceptible  of  torment,  shall  certainly  be 
assumed  after  death ; 


io62  APPENDIX 

17.  "And,  being  intimately  united  with  those  minute  nervous  particles, 
according  to  their  distribution,  they  shall  feel,  in  that  new  body,  the 
pangs  inflicted  in  each  case  by  the  sentence  of  Yama. 

18.  "When  the  vital  soul  has  gathered  the  fruit  of  sins,  which  arise 
from  a  love  of  sensual  pleasure,  but  must  produce  misery,  and,  when  its 
taint  has  thus  been  removed,  it  approaches  again  those  two  most  effulgent 
essences,  the  intellectual  soul  and  the  divine  spirit: 

19.  "They  two,  closely  conjoined,  examine  without  remission  the  virtues 
and  vices  of  that  sensitive  soul,  according  to  its  union  with  which  it 
acquires  pleasure  or  pain  in  the  present  and  future  worlds. 

20.  "If  the  vital  spirit  had  practised  virtue  for  the  most  part,  and 
vice  in  a  small  degree,  it  enjoys  delight  in  celestial  abodes,  clothed  with 
a  body  formed  of  pure  elementary  particles; 

21.  "But,  if  it  had  generally  been  addicted  to  vice,  and  seldom  attended 
to  virtue,  then  shall  it  be  deserted  by  those  pure  elements,  and,  having 
a  coarser  body  of  sensible  nerves,  it  feels  the  pain  to  which  Yama  shall 
doom  it: 

22.  "Having  endured  those  torments  according  to  the  sentence  of 
Yama,  and  its  taint  being  almost  removed,  it  again  reaches  those  five 
pure  elements  in  the  order  of  their  natural  distribution, 

24.  "Be  it  known,  that  the  three  qualities  of  the  rational  soul  are  a 
tendency  of  goodness,  to  passion,  and  to  darkness;  and,  endued  with 
one  or  more  of  them,  it  remains  incessantly  attached  to  all  those  created 
.•substances : 

25  "When  any  one  of  the  three  qualities  predominates  in  a  mortal 
"frame,  it  renders  the  embodied  spirit  eminently  distinguishable  for  that 
quality. 

26.  "Goodness  is  declared  to  be  true  knowledge;  darkness,  gross 
ignorance ;  passion,  an  emotion  of  desire  or  aversion ;  such  is  the  com- 
pendious description  of  those  qualities,  which  attend  all  souls. 

31.  "Study  of  scripture,  austere  devotion,  sacred  knowledge,  corporeal 
purity,  command  over  the  organs,  performances  of  duties,  and  meditation 
on   the  divine  spirit,   accompany  the   good   quality   of   the   soul: 

32.  "Interested  motives  for  acts  of  religion  or  morality,  perturbation 
of  mind  on  slight  occasions,  commission  of  acts  forbidden  by  law,  and 
habitual  indulgence  in  selfish  gratifications,  are  attendant  on  the  quality 
of  passion: 

33.  "Covetuousness,  indolence,  avarice,  detraction,  atheism,  omission 
of  prescribed  acts,  a  habit  of  soliciting  favors,  and  inattention  to  necessary 
business,  belong  to  the  dark  quality. 

38.  "Of  the  dark  quality,  as  described,  the  principal  object  is  pleasure; 
of  the  passionate,  wordly  prosperity;  but  of  the  good  quality  the  chief 
object  is  virtue:  the  last  mentioned  objects  are  superior  in  dignity. 

40.  "Souls,  endued  with  goodness,  attain  always  the  state  of  deities ; 
those  filled  with  ambitious  passions,  the  condition  of  men;  and  those  im- 


CODE  OF  MANU  1063 

mersed    in    darkness,   the   nature   of   beasts;   this   is   the   triple   order   of 
transmigration. 

42.  "Vegetable  and  mineral  substances,  worms,  insects,  and  reptiles,  some 
very  minute,  some  rather  larger,  fish,  snakes,  tortoises,  cattle  shakals, 
are  the  lowest  forms,  to  which  the  dark  quality  leads. 

43.  "Elephants,  horses,  men  of  the  servile  class,  and  contemptible 
Mlechhas,  or  barbarians,  lions,  tigers,  and  boars  are  the  mean  states  pro- 
cured by  the  quality  of  darkness: 

44.  "Dancers  and  singers,  birds,  and  deceitful  men,  giants,  and  blood- 
thirsty savages,  are  the  highest  conditions,  to  which  the  dark  quality 
can  ascend. 

45.  "J'hallas,  or  cudgel-players,  Mallas,  or  boxers  and  wrestlers,  Natas, 
or  actors,  those  who  teach  the  use  of  weapons,  and  those  who  are  addicted 
to  gaming  or  drinking,  are  the  lowest  forms  occasioned  by  the  passionate 
quality : 

46.  "Kings,  men  of  the  fighting  class,  domestic  priests  of  kings,  and 
men  skilled  in  the  war  of  controversy,  are  the  middle  states  caused  by 
the  quality  of  passion: 

47.  "Gandharvas,  or  aerial  musicians,  Guhyacas,  and  Yacshas,  or  ser- 
vants and  companions  of  Cuvera,  genii  attending  superior  gods,  as  the 
Vidyadharas  and  others,  together  with  various  companies  of  Apsarases 
or  nymphs,  are  the  highest  of  those  forms,  which  the  quality  of  passion 
attains. 

48.  Hermits,  religious  mendicants,  other  Brahmans,  such  orders  of 
demigods  as  are  wafted  in  airy  cars,  genii  of  the  signs  and  lunar  mansions, 
and  Daityas,  or  the  offspring  of  Diti,  are  the  lowest  of  states  procured 
by  the  quality  of  goodness : 

49.  "Sacrificers,  holy  sages,  deities  of  the  lower  heaven,  genii  of  the 
Vedas,  regents  of  stars  not  in  the  paths  of  the  sun  and  moon,  divinities 
of  years,  Pitris  or  progenitors  of  mankind,  and  the  demigods  named 
Sadhyas,  are  the  middle  forms,  to  which  the  good  quality  conveys  all 
spirits  moderately  endued  with  it: 

50.  "Brahma  with  four  faces,  creators  of  worlds  under  him,  as  Marichi 
and  others,  the  genius  of  virtue,  the  divinities  presiding  over  (two 
principles  of  nature  in  the  philosophy  of  Capila)  mahat,  or  the  mighty, 
and  avyacta,  or  unperceived,  are  the  highest  conditions,  to  which,  by 
the  good  quality,  souls  are  exalted. 

Then  follows  an  account  of  the  particular  incarnations  which  the  soul 
must  endure   for  the  various  offenses. 

83.  "Studying  and  comprehending  the  Veda,  practising  pious  austeri- 
ties, acquiring  divine  knowledge  of  law  and  philosophy,  command  over 
the  organs  of  sense  and  action,  avoiding  all  injury  to  sentient  creatures, 
and  showing  reverence  to  a  natural  and  spiritual  father,  are  the  chief 
branches  of  duty  which  ensure  final  happiness. 


io64  APPENDIX 

84.  "Among  all  those  good  acts  performed  in  this  world,  said  the  sages, 
is  no  single  act  held  more  powerful  than  the  rest  in  leading  men  to 
beatitude  ? 

85.  "Of  all  those  duties,  answered  Bhrigu,  the  principal  is  to  acquire 
from  the  Upanishads  a  true  knowledge  of  one  supreme  God;  that  is  the 
most  exalted  of  all  sciences,  because  it  ensures  immortality: 

90.  "He,  who  frequently  performs  interested  rites,  attains  an  equal 
station  with  the  regents  of  the  lower  heaven;  but  he,  who  frequently 
performs  disinterested  acts  of  religion,  becomes  forever  exempt  from  a 
body  composed  of  the  five  elements: 

91.  "Equally  perceiving  the  supreme  soul  in  all  beings  and  all  beings 
in  the  supreme  soul,  he  sacrifices  his  own  spirit  by  fixing  it  on  the 
spirit  of  God,  and  approaches  the  nature  of  that  sole  divinity,  who  shines 
by  his   own   effulgence. 

94.  "To  patriarchs,  to  deities,  and  to  mankind,  the  scripture  is  an  eye 
giving  constant  light;  nor  could  the  Veda-Sastra  have  been  made  by 
human  faculties;  nor  can  it  be  measured  by  human  reason  unassisted 
by  revealed  glosses  and  comments :  this  is  a  sure  proposition. 

95.  "Such  codes  of  law  as  are  not  grounded  on  the  Veda,  and  the 
various  heterodox  theories  of  men,  produce  no  good  fruit  after  death, 
for  they  are  all  declared  to  have  their  basis  on  darkness. 

loi.  "As  fire  with  augmented  force  burns  up  even  humid  trees,  thus 
he,  who  well  knows  the  Veda,  burns  out  the  taint  of  sin,  which  has 
infected   his   soul. 

108.  "If  it  be  asked,  how  the  law  shall  be  ascertained,  when  particular 
cases  are  not  comprised  under  any  of  the  general  rules,  the  answer  is 
this:  "That,  which  well-instructed  Brahmans  propound,  shall  be  held 
incontestable  law. 

109.  "Well  instructed  Brahmans  are  they,  who  can  adduce  ocular 
proof  from  the  scripture  itself,  having  studied,  as  the  law  ordains, 
the  Vedas  and  their  extended  branches,  or  Vedangas,  Minansa,  Nyaya, 
Dharma-Sastra,  Puranas. 

no.  "A  point  of  law,  before  not  expressly  revealed,  which  shall  be 
decided  by  an  assembly  of  ten  such  virtuous  Brahmans  under  one 
chief,  or,  if  ten  be  not  procurable,  of  three  such  under  one  president, 
let  no   man   controvert. 

111.  "The  assembly  of  ten  under  a  chief,  either  the  king  himself  or  a 
judge  appointed  by  him,  must  consist  of  three,  each  of  them  peculiarly 
conversant  with  one  of  the  three  Vedas,  of  a  fourth  skilled  in  the  Nyaya, 
and  a  fifth  in  the  Minansa  philosophy;  of  a  sixth,  who  has  particularly 
studied  the  Niracta;  a  seventh,  who  has  applied  himself  most  assiduously 
to  the  Dharma-Sastra;  and  of  three  universal  scholars,  who  are  in 
the  three  first  orders. 

112.  One,  who  has  chiefly  studied  the  RTgveda,  a  second,  who  prin- 
cipally knows  the  Yajush,  and  a  third  best  acquainted  with  the   Saman, 


CODE  OF  MANU  1065 

are  tlie  assembly  of   three  under  a  head,   who  may  remove   all   doubts 
both  in  law  and  casuistry, 

113.  Even  the  decision  of  one  priest,  if  more  cannot  be  assembled, 
who  perfectly  knows  the  principles  of  the  Vedas,  must  be  considered 
a  law  of  the  highest  authority;  not  the  opinions  of  myriads,  who  have 
no   sacred  knowledge. 

118.  "Let  every  Brahman  with  fixed  attention  consider  all  nature, 
both  visible  and  invisible,  as  existing  in  the  divine  spirit,  for  when  he 
contemplates  the  boundless  universe  existing  in  the  divine  spirit,  he 
cannot  give  his  heart  to  iniquity : 

119.  "The  divine  spirit  alone  is  the  whole  assemblage  of  gods;  all 
worlds  are  seated  in  the  divine  spirit;  and  the  divine  spirit  no  doubt 
produces,  by  a  chain  of  causes  and  effects  consistent  with  free-will,  the 
connected  series  of  acts  performed  by  embodied  souls. 

122.  "But  he  must  consider  the  supreme  omnipresent  intelligence  as 
the  sovereign  lord  of  them  all,  by  whose  energy  alone  they  exist;  a 
spirit,  by  no  means  the  object  of  any  sense,  which  can  only  be  conceived 
by  a  mind  wholly  abstracted  from  matter,  and  as  it  were  slumbering; 
but  which,  for  the  purpose  of  assisting  his  meditation,  he  may  imagine 
more  subtle  than  the  finest  conceivable  essence,  and  more  bright  than 
the  purest   gold. 

123.  Him  some  adore  as  transcendently  present  in  elementary  fire; 
others,  in  Manu,  lord  of  creatures,  or  an  immediate  agent  in  the  creation; 
some,  as  more  distinctly  present  in  Indra,  regent  of  the  clouds  and  atmo- 
sphere; others  in  pure  air;  others,  as  the  most  Hig-h  Eternal  Spirit. 

124.  "It  is  he,  who,  pervading  all  beings  in  five  elemental  forms, 
causes  them  by  the  gradations  of  ibirth,  growth,  and  dissolution,  to 
revolve  in  this  world,  until  they  deserve  beatitude,  like  the  wheels  of  a  car. 

125.  "Thus  the  man,  who  perceives  in  his  own  soul  the  supreme  soul 
present  in  all  creatures,  acquires  equanimity  toward  them  all,  and  shall 
be  absorbed  at  last  in  the  highest  essence,  even  that  of  the  Almighty 
himself." 

The  fundamental  principles  of  this  code  are  more  ancient  than  the 
code  itself.  Castes  had  existed  from  a  considerably  earlier  time,  and  the 
religious  ideas  are  based  on  and  taken  from  the  Vedas.  When  it  is 
considered  that  the  system  of  laws  embodied  in  this  code  was  in  force 
in  its  essential  features  more  than  three  thousand  years  ago,  and  that 
the  vast  population  of  India  is  still  so  strongly  attached-  to  it,  that 
the  British  government  finds  it  expedient  to  adjust  the  rights  of  litigants 
in  accordance  with  its  rules,  it  must  be  accorded  preeminence  for  stability 
and  immutability  over  all  other  codes  ever  promulgated.  It  is  not, 
however,  to  be  inferred  that  this  code  in  its  purity  has  been  observed 
by  all  the  Brahmans  in  all  ages.  On  the  contrary  its  maxims  have 
been  ignored  or  corrupted  at  different  times  and  in  different  places,  and 


io66  APPENDIX 

rulers  have  interpolated  laws  of  their  own,  for  which  they  have  claimed 
the  sanction  of  Manu.  The  learned  Hindus  also  hold  that  some  of  these 
laws  were  in  force  only  during  the  first  three  ages  of  the  world  but 
are  now  obsolete;  such  laws  however  are  neither  numerous  nor  of 
marked  importance. 

INSTITUTES  OF  JUSTINIAN 

Among  the  opening  paragraphs  of  the  first  of  the  four  books  of  the 
Institutes  are  the  following,  "Justitia  est  constans  et  perpetua  voluntas 
jus  suum  cuique  tribuendi"  Justice  is  the  constant  and  perpetual  dispo- 
sition to  render  everyone  his  due. 

"Jurisprudence  is  the  knowledge  of  things  divine  and  human;  the 
science  of  what  is  just  and  unjust." 

"The  precepts  of  the  law  are  to  live  honestly,  to  hurt  no  one,  to  give 
to  every  one  his  due." 

"The  Roman  law  like  the  Grecian  is  divided  into  written  and  unwritten. 
The  written  consists  of  the  plebiscites,  the  decrees  of  the  senate,  ordi- 
nances of  the  princes,  edicts  of  the  magistrates  and  answers  of  the 
licensed  lawyers." 

"The  unwritten  law  is  that  which  usage  has  approved,  for  daily  cus- 
tqms  established  by  the  consent  of  those  who  use  them  take  the  charac- 
ter of  law." 

The  third  title  is  "Of  the  right  of  persons"  and  begins  by  dividing 
persons  into  freemen  and  slaves,  "slavery  is  when  one  man  is  subject  to 
the  dominion  of  another  according  to  the  law  of  nations,  though  con- 
trary to  natural  right."  Slaves  are  defined  as  the  issue  of  slave  women, 
captives  sold  as  such  and  persons  above  the  age  of  twenty  who  allow 
themselves  to  be  sold  for  a  share  of  the  price.  The  child  of  a  woman 
free  at  the  time  of  conception,  or  during  pregnancy,  or  at  the  time  of 
birth  was  free.  A  free  man  who  became  a  slave  and  was  afterward 
manumitted  regained  the  status  of  a  free  man.  Slaves  might  be  manu- 
mitted in  a  great  variety  of  wj^ys,  by  public  declaration  in  the  face  of 
the  church  or  the  presence  of  friends,  by  letter  or  by  will,  and  at  any  time. 
Prior  to  Justinian's  legislation  freedmen  were  divided  into  three  classes, 
those  who  obtained  the  greater  liberty  and  became  Roman  citizens,  those 
who  became  Latins,  and  the  Dedititii  who  were  little  less  than  slaves  still. 
Justinian  abolished  these  distinctions  and  made  all  freedmen  citizens. 
An  insolvent  master  could  not  manumit  his  slaves  and  thereby  deprive 
his  creditors  of  payment.  An  insolvent  master  might  make  a  slave  his 
heir  and  thereby  give  him  his  freedom,  charged  with  the  payment  of  the 
master's  debts.  A  slave  made  heir  by  the  will  of  his  master  became  free, 
whether  so  declared  or  not.  By  the  law  Fusia  Caninia  masters  were 
limited  in  manumitting  by  testament.  Justinian  abolished  the  restrictions. 
Originally  the  master  had  full  power  to  inflict  death  on  a  slave,  and  the 
property  acquired  by  the  slave  of  course  belonged  to  the  master.     By  the 


INSTITUTES  OF  JUSTINIAN  1067 

constitution  of  Antoninus  restrictions  were  placed  on  the  power  of  mas- 
ters to  inflict  extraordinary  punishments,  and  in  cases  of  gross  ill  treat- 
ment it  was  provided  that  the  slave  might  be  sold  to  another  master  and 
the  price  given  in  lieu  of  the  slave.  The  patria  potestas  over  children 
v/as  preserved  with  substantial  modifications  under  Justinian.  Sons  in 
pote state  could  only  marry  with  consent  of  the  father,  but  if  he  were 
non  compos  a  son  or  daughter  might  marry  without  his  consent.  Mar- 
riage with  persons  related  in  direct  line,  whether  by  blood  or  adoption, 
was  prohibited,  and  also  among  collaterals  within  the  limits  of  brothers 
and  sisters,  uncles  and  nieces  or  great  nieces.  A  man  could  not  marry 
his  aunt  by  blood  or  adoption,  nor  his  great  aunt,  but  marriages  between 
first  cousins  were  allowed.  Marriage  with  a  wife's  daughter  or  a  daugh- 
ter-in-law was  prohibited,  also  with  a  wife's  mother  or  a  step-mother 
and  all  polygamy  was  forbidden.  A  son  of  a  husband  by  a  former  wife 
might  marry  the  daughter  of  a  wife  by  a  former  husband  and  e  contra. 
Children  born  out  of  lawful  wedlock  were  not  under  the  power  of  the 
father  and  did  not  inherit  from  him.  A  natural  son  who  was  made  a 
Decurian  became  subject  to  the  father's  power,  and  subsequent  legal 
marriage  legitimated  children  born  before  it.  Adopted  children  were 
subject  to  paternal  power  the  same  as  natural  only  where  the  adopting 
parent  was  of  his  blood.  Adoption  might  be  as  a  grand-son  or  grand- 
daughter. By  adrogation  the  whole  family  of  the  adopted  son  passed 
under  the  power  of  the  adopting  parent.  Adrogation  was  by  imperial 
rescript  and  only  allowed  on  conditions  and  compliance  with  certain  forms. 
At  the  death  of  the  father  the  sons  became  independent,  but  grand- 
sons came  under  the  power  of  their  father,  if  living  and  they  had  not 
been  emancipated.  If  the  father  were  sentenced  for  a  crime  to  be  de- 
ported to  an  island  to  work  as  a  slave  in  a  mine,  his  sons  ceased  to  be 
under  his  power.  Although  a  son  were  a  soldier,  a  senator  or  a  consul 
he  was  still  under  his. father's  power,  but  the  emperor  by  conferring  the 
patrician  dignity  on  him  emancipated  him  from  his  father's  power. 
Parents  were  allowed  to  manumit  their  children  and  grandchildren  be- 
fore the'  proper  magistrate,  and  they  might  emancipate  a  son  and  retain 
power  over  his  children  or  grandchildren.  Parents  might  assign  tutors 
to  children  not  arrived  at  the  age  of  puberty,  and  in  default  of  such  a 
testament  the  agnates,  nearest  male  relation  on  the  father's  side,  were 
vested  with  the  tutelage,  which  corresponded  for  their  protection  to  the 
paternal  power,  during  infancy.  Tutors  of  children  not  so  provided  for 
might  be  appointed  by  governors  of  the  provinces,  praefects  and  prae- 
tors, and,  where  the  estate  was  small,  by  the  inferior  magistrates.  The 
tutors  administered  the  affairs  of  their  pupils,  and  were  bound  to  account 
to  them  for  their  estates  when  they  arrived  at  the  age  of  puberty.  A 
person  contracting  with  the  pupil  bound  himself,  but  not  the  pupil. 
Tutelage  terminated  at  the  age  of  fourteen  in  males  and  twelve  in 
females,  and  thereafter  the  estates  of  minors  were  placed  under  the 
charge  of  curators  until  they  were  twenty-five  years  old.     Curators  were 


io68  APPENDIX 

appointed  by  the  same  magistrates  as  the  tutors,  and  testamentary  cura- 
tors had  to  be  confirmed  by  the  magistrate.  Curators  were  also  ap- 
pointed for  the  insane,  deaf  mutes  or  other  incompetents,  who  were  not 
able  to  manage  their  affairs.  Tutors  and  curators  might  be  compelled 
to  serve  and  elaborate  provisions  were  made  to  insure  their  faithfulness. 
A.  rather  singular  title  is  that  which  treats  of  diminution  of  condition  of 
the  person,  of  which  there  were  three  degrees.  The  greater  is  when  a 
man  loses  both  his  liberty  and  rights  as  a  citizen,  the  less  or  mesne  when 
he  loses  his  rights  as  a  citizen  but  retains  his  liberty,  and  the  least  when 
an  independent  man  comes  under  the  power  of  another  by  adoption,  or 
when  a  son  is  emancipated  by  his  father.  The  right  of  fishing  in  rivers 
and  ports  is  declared  to  be  common. 

The  first  book  of  the  institutes  treats  of  persons,  the  second  of  the 
division  of  things  and  the  acquisition  of  dominion  over  them.  Things 
common  to  mankind  are  declared  to  be  the  air,  running  water,  the  sea, 
rivers,  ports,  all  the  seashore  over  which  the  greatest  winter  flood  ex- 
tends, the  banks  of  rivers,  theatres,  public  grounds  of  a  city,  churches, 
the  walls  of  a  city,  grounds  used  for  burial  and  other  consecrated  uses. 
Riparian  ownership  of  river  banks  was  allowed,  but  not  of  the  sea  coast. 
Property  in  wild  beasts  birds  and  fish  was  dependent  on  possession,  and 
in  case  of  escape  the  title  was  lost.  Property  in  wild  bees  was  gained 
by  hiving  them,  and  fresh  swarms  belonged  to  the  owner  of  the  hive 
from  which  they  came  out  so  long  as  they  remained  in  sight  of  the 
owner,  after  that  they  belonged  to  the  taker.  Geese  and  fowls  were 
subjects  of  ownership.  Whatever  was  taken  from  enemies  in  war,  in- 
cluding captives,  belonged  to  the  captors.  Whatever  was  gradually  added 
to  land  by  alluvion  became  the  property  of  the  land-owner,  but  if  sud- 
denly moved  in  a  body  it  remained  the  property  of  the  former  owner. 
An  island  formed  in  a  river  belonged  to  the  riparian  proprietors  in  equal 
parts  if  in  the  middle,  and  to  the  one  if  on  one  side  of  it.  The  title  to 
articles  manufactured  from  the  material  of  anothe'r  was  in  the  owner  of 
the  material,  if  in  such  form  that  it  could  be  again  reduced  to  the 
material  of  which  it  was  made,  otherwise  it  belonged  to  the  manufac- 
turer. Where  materials  were  mixed  by  consent,  the  whole  belonged  to 
both  in  common.  If  one  built  a  house  on  his  own  land  with  the  materials 
of  another  he  became  the  owner  of  it,  but  liable  to  pay  double  value 
for  the  materials,  and  if  one  built  with  his  own  materials  on  land  of 
another  the  house  belonged  to  the  owner  of  the  land.  But  one  in  bona 
fide  possession  of  land  might  be  protected  by  exception  of  fraud  against 
the  claim  of  the  owner,  who  refused  to  pay  the  value  of  the  materials 
and  cost  of  the  labor.  A  tree  planted  in  the  ground  of  another  belonged 
to  the  owner  of  the  land.  Grain  also  belonged  to  the  owner  of  the 
soil,  but  the  sower,  if  acting  in  good  faith,  might  also  be  protected  by 
an  exception  of  fraud.  A  poem  written  on  the  paper  or  parchment  of 
another  belonged  to  the  owner  of  the  material,  but  the  writer,  if  in 
possession    of   the    material   in   good    faith,    might   demand    pay    for   the 


INSTITUTES  OF  JUSTINIAN  1069 

writing.  A  different  rule  was  applied  to  a  picture  painted  on  the  tablet 
of  another,  the  painter  being  allowed  to  keep  it  on  payment  for  the  tablet. 

The  bona  fide  occupant  of  land  by  defective  title  was  not  required  to 
account  for  mesne  profits,  but  could  hold  only  the  fruits  he  actually  had 
gathered.  A  rather  strange  mixture  of  logic  and  moralizing  occurs  in 
Lib.  II  T.  I  Sec.  yj.  "Among  the  produce  of  animals  we  not  only 
reckon  milk,  skins  and  wool  but  also  their  young,  and  therefore  lambs, 
kids,  calves,  colts  and  pigs,  appertain  by  natural  right  to  the  usufructuary, 
but  the  offspring  of  a  female  slave  cannot  be  thus  considered,  but  belongs 
to  the  proprietor,  for  it  seems  absurd  that  man  should  be  included  as 
produce  when  nature  has  furnished  all  kinds  of  produce  for  his  use." 
It  certainly  seems  absurd  that  the  child  of  the  slave  should  be  the 
property  of  the  one  entitled  to  the  use  of  the  mother,  and  equally  so 
that  it  should  belong  to  the  master. 

The  ancient  distinction  between  res  mancipi  and  res  nee  mancipi,  which 
had  lost  much  of  its  significance,  was  entirely  obliterated  by  Justinian, 
who  provided:  "Things  are  also  acquired  by  traditions,  for  nothing  is 
more  conformable  to  natural  equity  than  to  confirm  the  will  of  him  who 
desires  to  transfer  his  property  to  another,  therefore  corporeal  things  of 
whatever  kind  may  be  delivered  and  when  delivered  by  the  owner  are 
aliened.  Stipendiary  and  tributary  possessions,  in  the  provinces,  may  be 
aliened  in  the  same  manner,  for  between  these  and  the  Italian  estates  we 
have  now  taken  away  all  distinction,  so  that  on  account  of  a  donation, 
a  marriage  portion  or  any  other  cause,  stipendiary  and  tributary  posses- 
sion may  undoubtedly  be  transferred  by  livery";  but  it  is  provided  that 
where  the  price  is  not  paid  or  secured  or  credit  given  the  title  remains 
in  the  seller.  The  owner  of  the  thing  sold  might  entrust  the  delivery  to 
another,  who  could  deliver  with  equal  effect.  Property  in  a  store  house 
might  be  delivered  by  delivering  the  keys.  Where  the  owner  of  goods 
threw  them  away,  the  finder  got  good  title  to  them,  but  if  thrown  out 
of  a  ship  in  a  storm  to  lighten  it,  anyone  finding  and  appropriating  the 
goods  to  his  own  use  was  guilty  of  theft.  Things  are  divided  into  cor- 
poreal and  incorporeal.  "Things  corporeal  are  tangible  as  lands,  slaves, 
vestments,  gold,  silver  and  other  things  innumerable.  Things  incor- 
poreal are  those  which  are  not  tangible,  but  consist  in  rights  and  privi- 
leges, as  inheritances,  usufructs,  uses  and  all  obligations  however 
contracted.  "Of  the  same  class  are  rights  of  rural  and  city  estates 
termed  servitudes."  Servitudes  of  passage  ways  and  aqueducts,  over 
lands  and  of  support  from  walls  in  cities,  etc.  are  defined,  and  are  said 
to  require  an  estate  in  land  to  support  them,  the  servitude  being  attached 
to  the  realty  and  not  a  personal  privilege. 

Usufruct  is  defined  to  be  the  right  of  using  and  enjoying  without  con- 
suming the  property  of  another.  A  usufruct  could  only  be  created  by 
will,  by  fact  or  stipulation,  and  might  be  of  lands,  houses,  slaves,  cattle 
and   other   things,   except  those    which    are   consumed   in   the   use.     The 


1070  APPENDIX 

usufruct  terminated  on  the  death  of  the  usufructuary,  and  also  by  the 
greater  and  middle  diminution  of  condition,  and  from  misuse  of  the 
thing  given.  On  termination  of  the  usufruct  the  whole  property  revests 
in  the  proprietor.  A  distinction  was  further  drawn  between  the  usufruct 
and  naked  use,  the  former  might  be  transferred,  but  the  latter  was 
personal  and  could  not  be. 

Possession  obtained  in  good  faith  of  movables  ripened  into  full  title  in 
three  years,  and  of  things  immovable  in  ten  years,  if  the  parties  are 
present  and  twenty  years  if  one  be  absent,  but  no  title  could  be  gained 
by  prescription  of  a  free  person,  a  fugitive  slave  or  a  sacred  religious 
thing,  nor  for  things  stolen  or  seized  by  violence,  even  though  bought 
in  good  faith,  nor  for  things  belonging  to  the  imperial  treasury.  The 
possession  of  the  ancestor  and  heir  might  be  joined  in  making  a  pre- 
scription, as  also  that  of  seller  and  buyer.  Title  to  property  might  also 
be  passed  by  donation.  This  might  be  in  anticipation  of  death,  and  not 
to  take  effect  except  on  the  event  of  the  death  of  the  donor,  or  a  simple 
gift  inter  vivos.  A  donation  might  in  some  cases  be  revoked  for  in- 
gratitude. Donations  in  consideration  of  marriage,  both  antenuptial  and 
post-nuptial,  were  recognized.  A  husband  was  prohibited  from  aliening 
or  mortgaging  property  obtained  as  a  marriage  portion  with  his  wife, 
even  with  her  consent. 

By  the  ancient  law  everything  acquired  by  children  under  the  power 
of  the  father,  except  the  peculium  castresne,  property  acquired  by  the 
son  in  military  service,  belonged  to  the  father,  but  this  rule  was  modi- 
fied by  Justinian,  so  that  the  father's  full  title  extended  only  to  that  which 
was  acquired  by  the  5on  by  means  of  the  father's  property.  Whatever 
the  son  acquired  by  his  own  exertion  remained  his,  subject  to  the  right 
of  the  father  to  the  usufruct  of  it.  The  father  might  emancipate  the  son, 
and  in  that  case  was  entitled  to  the  usufruct  of  one-half  the  property 
of  the  son  as  the  price  of  emancipation.  As  to  the  acquisitions  of  slaves 
the  master  took  everything.  Where  a  slave  was  merely  held  in  usufruct, 
the  proceeds  of  his  labors  and  dealings  went  to  the  usufructuary,  but 
whatever  he  gained  by  other  means,  as  gifts  or  inheritance,  went  to  the 
proprietor. 

A  most  important  title  of  the  law  is  that  relating  to  testaments  and  in- 
heritances. Great  formalities  were  required  in  making  testaments.  It 
must  be  in  writing,  signed  and  sealed  by  the  testator  and  seven  witnesses, 
all  in  the  presence  of  each  other  and  at  one  time;  and  the  name  of  the 
heir  was  required  to  be  expressed  in  the  handwriting  of  the  testator  or 
a  witness.  Women,  minors  under  the  age  of  puberty  and  slaves  were 
incompetent  as  witnesses.  No  person  under  power  of  the  testator  could 
be  a  witness.  Neither  the  heir  nor  his  father  or  brothers  under  power 
of  the  father  could  be  witnesses,  but  legatees  were  not  rejected.  The  will 
might  be  written  on  a  tablet  of  wax,  paper,  parchment  or  any  other 
substance.     A   nuncupative   will  might  be   made   without   writing  in   the 


INSTITUTES  OF  JUSTINIAN  1071 

presence  of  seven  witnesses.  Strict  formalities  in  making  wills  were  dis- 
pensed with  in  the  case  of  soldiers  in  actual  service,  and  by  the  rescript 
of  Trajan  it  was  declared,  that  if  the  soldier  "did  in  the  presence  of 
witnesses,  purposely  called,  declare  what  person  should  be  his  heir  and 
to  what  slaves  he  should  give  liberty,  he  shall  be  reputed  to  have  made 
his  testament  without  writing  and  his  will  shall  be  ratified."  Persons 
under  the  power  could  not  make  a  will,  except  of  property  acquired  by 
military  service.  To  disinherit  a  child  it  was  necessary  to  mention  him 
in  the  will,  and  this  applied  also  to  a  posthumous  child,  to  grandchildren 
whose  parents  were  dead  and  to  adopted  children  male  and  female. 
This  rule  did  not  apply  in  case  of  a  soldier  in  actual  service,  a  mother 
or  a  maternal  grandfather.  A  testator  might  make  his  own  slave  his 
heir,  but,  if  he  named  the  slave  of  another,  the  gift  could  only  be  ac- 
cepted by  the  master's  order.  The  testator  might  name  as  many  heirs 
and  in  such  proportions  as  he  pleased.  A  testator  might  provide  for  a 
substitution  in  case  the  heir  named  died  within  the  age  of  puberty,  but 
not  for  an  heir  above  that  age,  except  by  gifts  in  trust,  fidei-commissum. 
Slaves  and  children  under  the  power  were  bound  to  accept  the  inheri- 
tance and  thereby  to  pay  the  debts  of  the  testator,  but  a  stranger  named 
as  heir  could  accept  or  reject  at  pleasure.  Justinian  modified  the  law 
so  as  to  allow  an  acceptance  chargeable  with  debts  only  to  the  value  of 
the  estate.  A  legacy  was  defined  as  "a  gift  directed  by  the  deceased  to 
be  fulfilled  by  the  heir."  Specific  property  belonging  to  another  might  be 
given  as  a  legacy,  so  that  the  heir  would  be  bound  to  buy  and  deliver  it 
or  pay  the  value  of  it.  Legacies  might  be  of  lands,  slaves  and  debts  as 
well  as  of  money  or  chattel  property.  Very  minute  provisions  were  made 
for  the  construction  and  effect  of  wills,  both  in  nominating  heirs  and 
legatees.  The  peculiar  principles  governing  the  Roman  family  and  the 
possession  of  slaves,  who  might  be  affected  by  change  of  condition,  oc- 
casion many  refinements  and  distinctions  in  the  law.  Not  more  than 
three-fourths  the  inheritance  was  allowed  to  be  given  in  legacies.  An 
important  branch  of  the  law  was  that  relating  to  trusts,  fidei-commissum. 
This  was  a  direction  or  request  that  the  heir  deliver  the  whole  or  a  part 
of  the  estate  to  another  in  accordance  with  the  terms  imposed  by  the 
testator.  At  first  compliance  with  such  requests  was  not  compulsory,  but 
dependent  on  the  good  faith  of  the  heir,  but  from  the  time  of  Augustus 
they  were  treated  as  binding  and  enforced  by  the  praetors.  The  law  with 
reference  to  these  trusts  was  filled  with  nice  questions  and  many  re- 
finements. As  in  case  of  legacies  the  trust  might  be  to  procure  and 
deliver  property  belonging  to  another,  in  which  case  the  heir  must  procure 
and  deliver  it  or  pay  the  value.  The  will  might  direct  the  manumission 
of  a  slave  either  of  the  testator  or  of  another  owner,  and  in  the  latter 
case  the  heir  was  bound  to  buy  and  manumit  the  slave.  Property  might 
also  be  disposed  of  by  a  codicil,  which  required  no  solemnity  of  execu- 
tion,  and   did   not   necessitate   the   execution   of   a   testament.     An   heir 


1072  APPENDIX 

could  not  be  made  by  a  codicil,  but  property  could  be  taken  away  from 
the  heir  by  means  of  a  trust.  Testaments  improvidently  made  could  be 
avoided  as  to  one-fourth  of  the  estate  on  complaint  of  children  under 
certain  conditions.  In  default  of  a  valid  testament  inheritances  went 
to  the  proper  heirs  "suos  haeredes."  who  at  the  death  of  the  deceased 
were  under  his  power;  children  inherited  equally  and  descendants  of 
deceased  children  took  the  shares  of  their  parents.  When  there  were  no 
lineal  descendants,  the  inheritance  passed  to  the  nearest  agnates  i.e.,  those 
related  through  males,  to  the  exclusion  of  the  cognates;  those  related 
by  adoption  took  the  same  as  if  related  by  blood.  This  rule  was  modi- 
fied so  as  to  admit  sons  and  daughters  of  a  sister  to  inherit  from  a 
deceased  uncle  along  with  the  agnates,  but  their  descendants  could  not 
take  as  long  as  there  were  agnates.  The  whole  of  the  inheritance 
passed  to  those  in  the  nearest  degree  equally.  Mothers  might  inherit 
from  sons  who  died  without  issue.  In  case  of  a  failure  of  proper  heirs 
or  agnates  the  succession  passed  to  cognates.  Agnates  related  in  the 
tenth  degree  might  inherit,  but  cognates  only  to  the  seventh.  The 
•degree  of  relationship  of  two  persons  was  computed  by  counting  from 
one  to  the  common  ancestor  and  from  him  down  to  the  other,  each 
generation  in  each  line  counting  as  a  degree.  The  estate  of  a  freed 
man  in  default  of  proper  heirs  went  to  his  patron,  and  in  certain  cases 
the  patron  of  a  wealthy  freedman  was  entitled  to  a  share  with  the 
children  of  the  freedman.  Where  no  one  succeeded  to  an  estate  as  heir, 
the  goods  might  be  sold  for  the  payment  of  debts.  The  subject  of 
the  disposition  of  property  of  deceased  persons  fills  a  full  third  of  the 
Institutes. 

The  next  title  is  De  Obligationibus,  which  are  divided  into  civil  and 
Praetorian,  and  again  into  obligations  by  contract,  by  quasi-contract,  by 
malfeasance  and  by  quasi-malfeasance.  Obligations  by  contract  were 
classified  as  arising  from  a  thing,  from  words,  by  writing  or  by  consent 
of  parties.  The  first  of  these  was  termed  a  mutuum  and  included  loans 
of  money  or  goods  of  any  sort  to  be  returned  in  kind,  and  which  could 
be  enforced  by  the  action  certi  condictio.  In  the  case  of  the  mutuum  the 
property  in  the  thing  passed  by  the  transfer.  Where  the  article  de- 
livered was  to  be  used  and  returned,  it  was  called  a  commodatum.  In 
case  of  the  mutuum  the  receiver  was  bound  absolutely  to  make  return, 
but  in  case  of  the  commodatum  he  was  held  to  the  highest  diligence  in 
taking  care  of  it,  but  not  liable  for  loss  by  superior  force  or  extraor- 
dinary accident,  unless  he  took  the  thing  abroad  and  lost  it  through 
perils  of  the  journey,  in  which  case  he  was  liable.  In  case  of  a  deposit 
the  depositary  was  only  liable  for  loss  through  his  fraud  and  not  for 
negligence.  In  case  of  a  pledge  to  secure  a  debt  the  bailee  was  held 
to  strict  diligence  in  preserving  the  property.  Verbal  obligations  arose 
from  question  and  answer,  and  the  forms  anciently  in  use  are  given 
thus.  Spondes?  Do  you  undertake?  Spondeo.  I  undertake.  Promittis? 
Do   you    promise?      Promitto.      I    promise.     Dabisf     Will    you    deliver. 


INSTITUTES  OF  JUSTINIAN  1073 

Dabo.  I  will  deliver.  These  particular  words  are  however  declared  un- 
necessary, and  any  forms  of  expression  having  the  same  meaning  are 
equally  binding.  The  performance  of  a  contract  might  be  required  im- 
mediately and  absolutely,  in  the  future,  or  conditionally  on  the  happening 
of  some  event,  and  was  given  effect  according  to  its  terms,  but  where 
acts  were  stipulated  for,  a  penalty  for  non  performance  was  necessary. 
Two  or  more  persons  might  be  bound  to  perform  the  same  obligation  or 
entitled  to  enforce  it,  but  a  single  payment  discharged  all.  Of  two 
promissors  one  might  be  bound  absolutely  and  the  other  only  condition- 
ally. The  contracts  of  a  slave  inured  to  the  benefit  of  his  master,  and, 
if  owned  by  several  masters,  to  each  in  proportion  to  his  ownership. 
There  were  judicial  stipulations,  where  security  was  required  by  a  judge 
against  fraud,  or  for  pursuing  a  slave  who  had  fled;  Praetorian  stipula- 
tions, required  to  insure  compliance  with  some  order,  and  conventional 
stipulations,  "and  of  these  stipulations  there  are  as  many  kinds  as  of 
things  to  be  contracted  for."  All  manner  of  property  was  subject  to 
stipulation,  but  slaves  and  persons  under  the  power  could  not  stipulate 
with  their  masters,  though  a  son  could  bind  himself  by  his  contract  with 
a  person  other  than  his  father.  Pupils  under  tutorship  could  only  con- 
tract with  the  consent  of  their  tutors,  and  the  contracts  of  madmen, 
mutes  and  deaf  persons  were  invalid.  A  verbal  obligation  between  absent 
persons  was  void,  but  a  writing  was  valid,  unless  it  could  be  clearly 
shown  that  one  or  the  other  of  the  parties  to  the  contract  was  absent 
from  the  place  where  it  was  made  during  the  whole  day  of  its  date. 
A  stipulation  might  be  made  to  take  effect  just  before  or  after  the  death 
of  the  obligor  or  obligee,  though  before  Justinian's  time  it  would  not 
have  been  binding.  No  man  could  stipulate  for  another.  "Therefore 
if  a  man  should  stipulate  that  a  certain  thing  shall  be  given  to  Titus  it 
will  not  avail,  but,  if  he  add  a  penalty  as  do  you  promise  to  give  me  so 
many  aurei  if  you  do  not  give  the  thing  stipulated  to  Titus,  the  penalty 
may  be  enforced."  But  a  stipulation  for  the  benefit  of  the  stipulator  and 
another  was  good.  One  who  undertook  for  the  performance  of  another 
was  not  bound,  unless  he  promised  under  penalty.  A  stipulation  was 
ineffectual  where  it  failed  to  show  that  the  parties  referred  to  and 
agreed  on  the  same  thing,  or  where  performance  was  illegal,  immoral 
or  impossible.  Suretyship  was  recognized  and  enforced  against  the  fide- 
jussors in  all  kinds  of  contracts.  The  custom  of  money  lenders,  then  as 
now,  was  to  exact  security,  and  the  fide-jussor  stood  in  the  same  case  as 
the  modern  surety.  He  and  his  heirs  alike  were  held,  and  his  obligation 
might  precede  or  follow  the  contract  of  the  principal,  and  each  surety 
was  bound  for  the  whole  debt.  Contribution  among  sureties  was  not 
enforced,  unless  demanded  at  the  time  of  the  suit  on  the  obligation.  If 
one  surety  paid  the  whole  debt  of  an  insolvent  principal  he  had  to  bear 
the  whole  loss.  The  obligation  of  the  surety  might  be  less,  but  never 
greater  than  that  of  the  principal,  and  the  fide-jussor  might  recover  the 


I074  APPENDIX 

sum  paid  from  his  principal.  A  written  obligation  for  the  payment  of 
money  could  not  be  avoided  on  the  ground  that  the  money  was  not  ad- 
vanced, unless  an  exception  was  brought  within  two  years.  "Obligations 
are  made  by  consent  in  buying,  selling,  letting,  hiring,  partnerships  and 
mandates.  An  obligation  thus  entered  into  is  said  to  be  contracted  by 
consent,  because  neither  writing  nor  the  presence  of  parties  is  absolutely 
necessary.  Nor  is  delivery  necessary  to  make  the  contract  take  effect, 
for  it  suffices  that  the  parties  consent,  hence  these  contracts  may  be 
entered  into  by  absent  parties  by  letters  or  messengers."  "The  contract 
of  buying  and  selling  is  perfected  as  soon  as  the  price  is  agreed  upon, 
although  it  is  not  paid  nor  even  an  earnest  given."  A  distinction  is 
drawn  between  sale  and  barter,  and  in  support  of  it  a  passage  from  the 
Iliad  is  quoted.  On  a  sale  the  buyer  at  once  becomes  liable  for  the  price 
and  subject  to  the  risk  of  loss,  whether  delivery  was  made  or  not,  but 
a  sale  might  be  conditional.  In  distinguishing  sales  from  contracts  of 
location  and  conduction,  letting  and  hiring,  a  singular  question  is  sug- 
gested, namely  where  lands  are  transferred  in  perpetuity  with  a  reserva- 
tion of  a  fixed  yearly  rental,  whether  this  is  a  sale  or  a  hiring.  It  was 
finally  settled  that  it  was  neither,  but  a  contract  resting  on  its  own 
terms  and  under  which,  if  there  were  no  express  provision  otherwise,  in 
case  of  a  total  destruction  of  the  property  the  loss  should  fall  on  the 
proprietor,  but  a  partial  loss  must  be  borne  by  the  tenant.  The  hirer  of 
property  was  bound  to  take  such  care  of  it  as  the  most  diligent  would 
take  of  his  own. 

General  partnerships  as  to  all  kinds  of  business,  and  special  as  to 
a  single  line,  were  recognized,  and  also  the  right  to  share  profits  and 
losses  in  any  proportions  agreed  on,  but  the  share  of  gain  only  was 
mentioned  in  the  contract,  losses  were  governed  by  the  same  rule.  A 
partnership  might  be  determined  at  the  pleasure  of  either  party,  but,  if 
one  renounced  to  gain  a  fraudulent  advantage,  he  might  be  compelled 
to  share  it  with  the  other  partner.  Death  of  a  partner  or  a  sale  of  all 
his  property  to  pay  his  debts  also  worked  a  dissolution  of  the  partner- 
ship. Partners  were  held  to  the  same  care  in  the  management  of  the 
partnership  property  that  they  exercised  with  reference  to  their  own. 

Mandates  for  the  transaction  of  any  business  were  divided  into  five 
classes,  solely  for  the  benefit  of  the  mandator,  jointly  for  his  benefit 
and  that  of  the  mandatary,  solely  for  the  benefit  of  a  third  person, 
jointly  for  the  mandator  and  a  third  person  or  jointly  for  the  benefit  of 
the  mandatary  and  a  third  person,  but  a  mandate  solely  for  the  benefit 
of  the  mandatary  was  null!  A  mandate  could  only  be  for  a  lawful  act, 
and  was  revokable  before  performance.  Th  mandatary  might  refuse 
to  accept  the  mandate  as  he  pleased,  but  having  accepted  he  was  bound 
to  perform  or  promptly  renounce,  and  an  action  of  mandate  was  given 
to  enforce  performance. 

Quasi  contracts  resulting  from  transactions  not  expressly  authorized, 
or  from  dealings  necessitated  by  the  relation  of  the  parties,  as  tutor  and 


INSTITUTES  OF  JUSTINIAN  1075 

pupil  or  tenants  in  common  of  lands,  heir  and  legatee,  payments  by 
mistake,  etc.  were  recognized  as  binding  and  enforceable.  Obligations 
might  be  discharged  by  payment  by  the  debtor  or  by  any  one  for  him 
or  by  acceptillation.  By  what  was  termed  the  Aquilian  stipulation,  all 
forms  of  obligation  might  be  reduced  to  a  set  form  and  discharged  by 
an  acceptillation,  by  which  payment  in  full  was  acknowledged.  An  ob- 
ligation might  also  be  discharged  by  a  novation,  through  which  another 
took  the  place  of  the  original  debtor,  but  to  constitute  a  novation  the 
intent  to  discharge  the  original  debtor  must  be  expressed,  otherwise 
both  the  original  and  subsequent  promissor  would  be  bound. 

Obligations  might  also  arise  from  malfeasance  and  quasi-malfeasance. 
Thefts  were  divided  into  manifest,  where  the  thief  was  caught  in  the 
act  or  while  carrying  away  the  stolen  property,  and  not  manifest,  where 
not  so  caught.  A  theft  was  called  conceptum  when  the  thing  stolen 
was  found  on  the  person  in  the  presence  of  witnesses.  For  a  manifest 
theft  the  thief  was  liable  to  pay  quadruple,  and  for  theft  not  manifest 
double,  the  value  of  the  thing  stolen.  The  conversion  of  a  pledge  or 
of  property  otherwise  entrusted  to  a  bailee  without  the  consent  of  the 
bailor  was  regarded  as  a  theft. '  Theft  of  the  person  might  be  committed 
of  free  persons  under  the  power,  and  a  debtor  might  steal  his  own 
property,  as  in  case  of  a  pledge.  Accessaries  were  liable  as  well  as 
principals,  but  no  action  of  theft  could  lie  between  parents  and  children 
or  master  and  slave,  though  it  might  against  the  accessary  of  the  child 
or  slave.  The  action  might  be  brought  by  any  person  interested  in  the 
safety  of  the  thing  stolen,  as  a  creditor  or  bailee  for  a  pledge.  Where 
property  was  loaned,  the  owner  might  sue  the  thief  or  the  borrower,  but 
not  both.  An  action  of  theft  was  always  for  the  penalty,  another  and 
separate  form  of  action  being  allowed  for  the  recovery  of  the  property. 
Where  property  was  taken  by  force,  by  the  action  vi  bonorum  raptorum 
the  owner  might  recover  quadruple  damages,  whether  manifest  or  not 
manifest,  if  brought  within  one  year,  but  if  afterward,  the  single  value 
only,  but  the  recovery  included  the  value  of  the  property  which  could 
not  be  specifically  recovered.  Where  property  was  forcibly  seized  under 
a  claim  of  ownership  or  right,  the  taker  was  liable  to  a  penalty  of  the 
value  of  it,  and  this  applied  to  forcible  seizure  of  houses  and  lands  as 
well  as  of  movables. 

An  action  for  injurious  damage  was  given  for  killing  a  slave  or  cattle. 
No  liability  attached  for  necessarily  killing  a  robber,  or  for  killing  an- 
other by  accident  without  fault.  If  a  soldier  killed  a  slave  while  exercis- 
ing in  his  appointed  place  he  was  not  liable,  but  any  other  person  killing 
a  slave  by  accidentally  striking  him  with  a  javelin  was  liable.  A  surgeon, 
who  having  performed  an  operation  on  a  slave  allowed  him  to  die  of 
neglect,  was  liable,  as  also  for  want  of  skill.  A  mule  driver,  who  killed 
a  slave  from  want  of  care  or  skill  as  a  driver,  was  liable.  One  who 
killed  a  slave  or  beast  of  another  was  liable  for  the  highest  price  which 


I076  APPENDIX 

the  slave  or  beast  would  have  brought  within  that  year,  and  if  a  slave 
should  have  been  made  heir  and  killed  before  entry  into  the  heirship 
and  the  inheritance  be  thereby  lost  to  the  master,  this  also  might  be 
added  as  damages.  Other  consequential  damages  were  also  recoverable. 
Both  a  civil  and  a  criminal  action  might  be  prosecuted  by  the  master. 
An  action  was  also  allowed  for  every  injury  to  slaves,  cattle  or  property,, 
but  the  recovery  was  limited  to  the  highest  price  that  could  have  been 
obtained  within  thirty  days  previous  to  the  injury.  An  action  was  given 
for  slander,  libel,  insults  to  women  and  various  other  wrongs,  and 
damages  awarded  according  to  circumstances,  among  which  were  the 
condition  of  the  injured  person,  "so  that  one  estimate  may  be  adopted 
in  the  case  of  a  steward  or  agent  and  a  lower  one  in  the  case  of  an 
inferior  slave."  An  injury  might  be  aggravated  by  the  place  of  its  com- 
mission, as  in  the  theater,  market  or  presence  of  the  praetor,  or  by  the 
rank  of  the  injured  party,  and  an  injury  inflicted  on  a  senator  by  one 
of  mean  condition,  on  a  parent  by  a  child  or  a  patron  by  his  freedman,, 
called  for  a  heavier  punishment  than  where  the  parties  were  equal  in 
rank.  For  every  injury  the  injured  party  might  prosecute  a  civil  or 
criminal  action,  and  the  suit  might  also  be  maintained  against  one  who 
counseled  or  caused  the  injury  to  be  done,  but  the  right  of  action  was 
lost  unless  complaint  was  promptly  made. 

A  judge  might  be  sued  by  an  action  of  quasi-mal feasance  for  giving  an 
unjust  judgment,  and  was  subject  to  such  penalty  as  a  superior  judge 
might  impose.  The  occupier  of  a  chamber,  from  which  anything  was 
thrown  or  spilt  causing  damage,  was  liable  for  the  injury  regardless  of 
the  person  who  committed  the  act,  and  must  pay  double  damages.  The 
master  of  a  ship  or  inn  was  liable  to  be  sued  for  quasi-malfeasance  for 
every  theft  or  damage  committed  in  his  ship  or  inn.  Actions  in  court 
were  divided  into  those  in  personam,  where  it  was  sought  to  enforce  a 
contract,  recover  damages  or  compel  the  performance  of  some  act  or 
duty,  and  in  rem  where  the  subject  of  the  action  was  some  specific  prop- 
erty, whether  recovery  of  the  thing  itself  was  sought  or  merely  the 
enforcement  of  a  right  with  reference  to  it,  as  of  an  easement.  Fictions 
were  allowable  to  enable  a  trustee,  who,  having  no  title  to  the  property 
entrusted  to  his  care,  should  be  deprived  of  the  possession  of  it,  to> 
recover  by  alleging  a  prescriptive  right.  Goods  of  a  debtor,  fraudulently 
transferred  to  avoid  payment,  might  be  recovered  by  the  creditors.  There 
were  many  and  varied  forms  of  action  for  the  enforcement  of  dififerent 
rights  in  personam  and  in  rem.  Although  fathers  and  masters  were  not 
legally  bound  for  the  debts  of  sons  and  slaves,  an  action  de  peculio  was 
allowed  against  them,  so  that  a  recovery  of  the  debt  of  the  son  or  slave 
might  be  had  to  the  extent  of  his  peculium  or  separate  estate.  Actions 
were  also  allowed  to  determine  whether  a  person  was  free  or  slave, 
legitimate  or  bastard,  and  these  were  classed  as  actions  in  rem.  There- 
were  also  mixed  actions,  as  for  goods  taken  by  force,  in  which  a  re- 
covery  of   both   the   price   of   the   goods   taken   and   triple    its   value   as-. 


INSTITUTES  OF  JUSTINIAN  1077 

damages  was  allowed.  The  idea  of  mixture  rests,  not  on  recovery  of 
the  property  itself  and  damages,  but  value  and  penalty.  Another  kind 
of  mixed  action,  more  logically  so-called,  was  for  the  division  of  prop- 
erty among  heirs  or  tenants  in  common,  in  which  the  judge  had  power 
to  apportion  the  property  in  equal  or  unequal  proportions  and  award 
compensation  to  those  receiving  less  than  their  sHare.  "All  actions  are 
for  the  single,  double,  triple  or  quadruple  value;  for  no  action  extends 
farther."^  The  single  value  was  sued  for  on  a  stipulation,  a  loan,  a  sale, 
a  purchase,  letting  and  hiring,  a  mandate,  and  very  many  other  causes, 
the  double  value  in  actions  of  theft  not  manifest,  of  injury  by  the  law 
Aquilia  and  some  cases  of  deposit,  also  for  corrupting  a  slave  or  de- 
taining a  legacy  left  to  a  holy  place,  for  triple  value  when  any  one 
inserts  a  greater  sum  than  is  allowed  in  a  libel  of  convention,  that 
officers  may  exact  a  greater  fee  from  the  defendant;  for  quadruple  value 
for  manifest  theft,  putting  in  fear,  for  giving  money  to  another  to 
corruptly  influence  him  to  do  or  not  do  a  particular  business,  or  for 
extorting  illegal  fees  from  a  defendant.  Actions  were  also  classified 
as  of  good  faith  or  strict  right.  Those  of  good  faith  were  from  buying 
and  selling,  letting  and  hiring,  business  transacted,  mandate,  deposit, 
partnership,  tutelage,  loan,  pledge,  partition  of  things  owned  in  common, 
the  demand  of  an  inheritance  and  those  in  prescribed  words  for  estimates 
and  commutation.  In  all  actions  of  good  faith  the  judge  had  full  power 
to  determine  according  to  justice  and  right  how  much  should  be  restored 
to  the  plaintiff,  and  to  deduct  from  the  recovery  any  sum  due  from 
the  plaintiff  to  the  defendant,  and  this  right  of  set  off  was  extended 
to  cases  of  strict  right,  except  for  deposits.  Some  actions  were  styled 
arbitrary,  where  the  judge  was  allowed  to  exercise  his  discretion  in 
awarding  judgment.  If  a  plaintiff  intentionally  demanded  more  than 
his  debt,  unless  a  minor  or  acting  under  mistake  in  certain  cases,  he 
lost  his  debt  under  the  ancient  practice,  but  this  was  modified  so  that 
a  penalty  of  triple  damages  was  substituted,  though  to  just  what  cases 
this  applied  it  is  difficult  to  determine.  If  a  plaintiff  modestly  asked 
less  than  was  due,  he  might  still  recover  the  whole  amount.  Where 
there  was  a  mistake  in  describing  the  property  sought,  an  amendment 
was  allowed  to  correct  it.  In  some  cases  a  suit  might  be  for  the  whole 
or  so  much  as  the  situation  allowed,  as  for  the  debt  of  a  son  or  slave 
to  be  paid  only  out  of  his  peculium,  or  where  a  woman  sued  for  her 
marriage  portion  where  the  husband  was  unable  to  pay  the  whole.  In 
these  cases  the  judgment  would  be  for  the  amount  of  the  peculium 
or  the  husband's  estate.  "If  any  one  sues  his  parent,  patron  or  partner, 
the  plaintiff  cannot  recover  a  greater  sum  than  his  adversary  is  able  to 
pay.  It  is  the  same  if  one  is  sued  for  his  donation.'"  Where  a  debtor 
turned  out  all  his  property  to  his  creditors  and  afterward  acquired  more, 

'  Lib.  IV-Tit.  Xl-Sec.  XXI. 
^Lib.  IV-Tit.  Vl-Sec.  XXXVIII. 


I078  APPENDIX 

they  might  sue  for  the  balance  unpaid,  but  could  not  recover  judgment 
for  more  than  the  debtor  was  able  to  pay.  A  master  could  be  sued 
on  contracts  made  by  his  slave  by  his  direction,  and  for  contracts  in  a 
business  entrusted  to  the  slave,  and  also  for  the  contracts  of  a  free 
person  or  the  slave  of  another  entrusted  with  the  conduct  of  his 
shop  or  business.  Where  a  slave  borrowed  money  and  expended  the 
whole  or  a  part  for  the  benefit  of  the  master,  the  master  was  liable 
to  pay  all  that  was  expended  for  his  benefit,  and  the  slave's  peculium 
only  was  liable  for  the  balance.  Different  forms  of  action,  called 
tributoria,  de  peculia  and  de  in  rem  verso,  were  adapted  to  the  different 
classes  of  cases  against  a  master  on  account  of  the  transactions  of 
his  slave.  Similar  rules  applied  to  the  dealings  of  children  under  the 
power,  but  a  suit  could  not  be  maintained  either  against  the  child  or 
parent   for  money  lent  the  child  while  under   the  power. 

Noxal  actions  were  allowed  against  the  master  for  the  thefts,  robberies 
and  injuries  of  his  slaves,  and  the  master  might  pay  the  judgment  or 
surrender  the  slave  in  satisfaction  of  it,  and  if  the  slave  could  satisfy 
his  new  master  in  money  he  might  be  manumitted  on  application  to  the 
praetor,  against  the  will  of  the  new  master.  A  noxal  action  followed 
the  ownership  of  the  slave,  and  in  case  of  a  sale  the  new  master  became 
liable,  and  of  manumission  the  freedman  himself.  A  cause  of  action 
against  a  free  man,  who  afterward  became  a  slave,  was  converted  into  a 
noxal  action  against  the  slave.  No  cause  of  action  could  arise  in 
favor  of  d  master  against  his  slave,  nor  in  favor  of  the  slave  against 
the  master.  Under  the  ancient  law  a  similar  forfeiture  for  the  act 
of  son  or  daughter  was  allowed  as  in  case  of  a  slave,  but  this  ceased 
to  be  the  law  before  Justinian's  time.  Noxal  actions  were  allowed  for 
injuries  caused  by  horses,  cattle,  etc.  which  were  accustomed  to  do 
such  injury,  and  by  giving  up  the  animal  the  owner  was  discharged 
from  further  liability.  There  was  no  liability  for  injuries  caused  by 
dogs  or  wild  beasts,  unless  kept  near  a  road  or  passage  way,  in  which 
case   the  keeper   was   liable   for   double   damages. 

A  suit  might  be  brought  in  the  name  of  the  party  interested  or  of  a 
procurator,  tutor  or  curator,  though  by  the  ancient  law  suit  in  the 
name  of  another  was  only  permitted  in  a  public  cause,  for  liberty  or 
tutelage.  Whoever  was  appointed  to  sue  for  another  was  called  a 
procurator,  and  no  particular  formality  of  appointment  was  required. 
By  the  ancient  practice  a  defendant  was  required  to  give  security  for 
the  performance  of  the  judgment,  and  where  a  suit  was  brought  by  a 
proctor,  tutor  or  curator,  he  had  to  give  security  that  his  acts  would 
be  ratified  by  his  principal,  but  by  the  law  of  Justinian's  time  a  de- 
fendant was  not  required  to  give  security  for  the  payment  of  the 
judgment,  but  only  for  his  personal  appearance  till  the  cause  was  ended, 
and  this  security  might  be  with  sureties  or  by  a  promise  with  or  without 
oath  according  to  the  quality  of  the  defendant.     If  a  procurator   failed 


INSTITUTES  OF  JUSTINIAN  .  1079 

to  produce  written  authority  or  confirmation  of  his  power  to  act  by 
his  client  in  court,  he  was  required  to  give  security  for  the  ratification 
of  his  acts.  A  defendant  when  sued  might  appear,  name  his  procurator 
and  give  the  required  security  or,  in  case  of  his  failure  to  appear, 
any  other  person  might  defend  for  him  on  giving  security  for  the  payment 
of    the    judgment. 

There  were  various  limitations  as  to  the  time  within  which  an  action 
might  be  brought,  those  given  merely  by  the  praetor's  authority  being 
generally  limited  to  a  year,  the  duration  of  his  term  of  office,  while  those 
arising  under  the  laws,  the  decrees  of  the  senate  and  edicts  of  the  em- 
perors, were  mostly  allowed  for  a  longer  period,  and  an  action  for 
manifest  theft  was  perpetual.  Penal  actions  arising  from  theft,  robbery, 
injury  and  consequential  damages  could  not  be  maintained  against,  but 
might  be  in  favor  of  the  heir,  except  actions  of  injury.  Not  all  actions 
on  contracts  survived  to  the  heir,  as  where  a  testator  commits  a  fraud 
through  which  nothing  is  added  to  the  property  of  the  heir.  Judgments 
in  penal  actions  contested  by  the  principals,  however,  passed  both  to  and 
against  the  heir.  An  action  might  be  settled  and  dismissed  at  any  time 
before  judgment  on  payment  by  the  defendant.  A  defendant  sued  on  a 
contract  extorted  by  fraud  or  fear  was  allowed  an  exception  of  fraud 
or  fear,  and  in  a  suit  on  a  stipulation  for  the  repayment  of  money  the 
defendant  might  have  an  exception  pecuniae  non  memeralae,  that  he  had 
not  received  the  money.  Exceptions  were  of  many  kinds,  some  allowed 
by  law,  some  by  the  authority  of  the  praetor,  some  were  perpetual, 
and  peremptory,  others  temporary  and  dilatory,  the  former  barring, 
the  latter  merely  delaying  the  action;  but  a  plaintiff  was  subject  to 
costs  and  a  penalty  for  commencing  suit  prematurely.  A  soldier  or  a 
woman  could  not  act  as  a  procurator.  To  the  exception  of  the  de- 
fendant the  plaintiff  might  plead  matter  of  avoidance  by  replication, 
to  which,  though  apparently  sufficient,  the  defendant  might  reply  by  a 
triplication,  and  so  on  till  an  end  was  reached.  Whatever  defense  a 
debtor  could  make  was  generally  available  equally  to  his  bondsmen, 
except  where  the  debtor  turned  over  all  his  goods,  and  was  entitled 
to  an  exception  si  bonis  cesserit. 

Interdicts  were  forms  of  words  by  which  the  praetor  commanded  or 
prohibited  something  to  be  done,  and  were  mainly  used  in  controversies 
concerning  the  possession  of  property.  They  were  divided  into  pro- 
hibitory, restoratory  and  exhibitory,  by  which  the  purpose  of  each  is 
fairly  expressed,  the  latter  supplying  to  some  extent  the  place  of  our 
writ  of  habeas,  and  by  which  the  production  of  a  slave,  freedman  or 
child  might  be  required  and  rights  with  reference  to  his  custody  de- 
termined. By  an  interdict  called  Quorum  Bonorum  the  possession  of 
goods  of  a  deceased  person  might  be  taken  from  the  heirs  and  given 
to  a  person  appointed  to  take  charge  of  them  by  the  praetor.  For 
the   retention  of  possession  of  property  there  were  interdicts   styled  uti 


io8o  APPENDIX 

possidetis  for  the  retention  of  houses  and  lands  and  utrubi  for  the 
possession  of  movables,  ownership  depending  in  many  cases  on  possession, 
which  might  be  maintained  in  person,  by  another  or  even  by  intention. 
An  interdict  for  the  recovery  of  possession,  called  unde  vi,  was  allowed 
where  one  had  been  forcibly  evicted  from  house  or  land,  and  the 
penalty  of  forcible  seizure  of  property  was  that  the  guilty  party  forfeited 
the  property  if  it  belonged  to  him,  and  if  it  did  not,  not  only  was  he 
required  to  make  restitution,  but  also  to  gay  the  value  of  it  as  a  penalty 
for  the  seizure.  Interdicts  might  be  simple  or  double,  simple  where 
the  plaintiff  required  something  to  be  exhibited  or  restored.  Uti 
possidetis  and  utrubi  were  double  interdicts  in  which  each  party  was 
regarded  as  much  plaintiff  and  defendant  as   the  other. 

A  defendant  could  not  plead  to  an  action  till  he  swore  that  he 
believed  his  defense  to  be  valid.  In  some  cases  by  a  denial  the  de- 
fendant exposed  himself  to  double  damage.  A  plaintiff  was  also  required 
to  swear  that  he  did  not  sue  maliciously,  but  believing  he  had  a  good 
cause.  The  advocates  on  both  sides  were  also  required  to  take  a 
similar  oath.  An  unjust  litigant  was  liable  to  pay  damages  and  costs 
of  suit  to  his  adversary.  In  some  cases  infamy  resulted  to  the  party 
condemned  in  a  civil  suit,  as  of  theft,  robbery,  injury  and  fraud,  and 
also    of    tutelage,    mandate,    deposit    and    partnership. 

The  first  step  in  a  law  suit  was  in  jus  vocando,  calling  the  adverse 
party  into  court.  Children  and  freedmen  were  not  allowed  to  call 
their  parents  or  patrons  into  court  without  first  obtaining  leave  of  the 
praetor.  Judges  were  admonished  not  to  decide  otherwise  than  as  the 
laws,  constitutions  and  customs  directed.  The  form  given  for  a  judg- 
ment in  a  noxal  action  is  certainly  a  model  of  brevity  and  definiteness. 
"Puhlium  Moevium  Lucio  Titio  in  decern  aureos  condemni  aut  noxam 
dedere."  In  actions  in  rem  the  recovery  was  not  only  of  the  property 
but  of  its  fruits  and  increase  as  well. 

Public  actions  were  such  as  might  be  prosecuted  by  anyone.  Among 
capital  offenses  were  enumerated  any  act  against  the  emperor  or  the 
republic,  adultery,  sodomy,  murder,  rape,  carrying  weapons  for  the 
purpose  of  killing  and  causing  death  by  magic  or  by  the  sale  of  poison 
medicines.  For  the  crime  of  parricide,  deemed  most  execrable  of  all, 
the  law  Pompeia  prescribed  the  following  punishment,  "he  shall  be 
sewed  up  in  a  sack,  with  a  dog,  a  C(5ck,  a  viper  and  an  ape,  and  being 
confined  in  this  narrow  deadly  enclosure  shall  be  thrown  into  the  sea 
or  river  according  to  the  situation  of  the  place."  The  killing  of  a 
child  or  any  person  occupying  the  relation  of  parent  was  within  the 
law.  Forgery  of  a  will  or  other  instrument  by  a  slave  was  punished 
with  death,  by  a  freeman,  with  deportation.  •  Judges,  who  while  in 
office  embezzled  public  funds,  were  punishable  with  death,  as  were  also 
their  accomplices,  but  others  for  like  offenses  were  punishable  with 
deportation   only.     Kidnapping  also  might  be  punished   with   death  or  a 


PENAL  CODE  OF  CHINA  1081 

milder  punishment.  Other  offenses  were  generally  less  severely  pun- 
ished, by  deportation,  condemnation  to  work  in  the  mines,  fines  and 
forfeiture    of    goods. 

The  foregoing  is  a  brief  outline  of  the  system  of  laws  which  had  been 
developed  at  Rome  and  in  the  empire  during  a  period  of  approximatel;!^ 
1300  years. 

THE  PENAL  CODE  OF  CHINA 
(Ta-Tsing  Leu-Lee) 

The  following  summary  of  the  provisions  of  the  penal  code  of  China 
is  made  from  a  translation  of  the  code  in  force  under  the  Ta-Tsing 
dynasty,  made  by  Sir  George  Thomas  Staunton  and  printed  by  Cor- 
dell  &  Davis,  London,  in  1810.  This  gives  a  view  of  the  law  as  it 
stood  before  it  was  materially  modified  by  foreign  influences. 

Though  denominated  a  penal  code,  it  is  not  merely  a  code  providing 
punishments  for  the  violation  of  what  in  European  and  American  states 
would  be  denominated  crimes,  but  would  be  here  denominated  a  code  of 
civil  as  well  as  criminal  laws. 

That  the  Chinese  have  long  comprehended  the  necessity  for  fixed 
rules  governing  the  conduct  and  decisions  of  officers  and  magistrates, 
is  clearly  shown  by  the  concluding  paragraph  of  the  preface  to  the 
edition  published  by  authority  of  the  emperor  Shun-Chee,  the  first 
of  the  Manchu  dynasty  in  1647. 

"Wherefore,  officers  and  magistrates  of  the  interior  and  exterior 
departments  of  our  empire,  be  it  your  care  diligently  to  observe  the 
same,  and  to  forebear  in  future  to  give  any  decision,  or  to  pass  any 
sentence,  according  to  your  private  sentiments,  or  upon  your  unsupported 
authority. 

'"Thus  shall  the  magistrates  and  people  look  up  with  awe  and  submission 
to  the  justice  of  these  institutions,  as  they  find  themselves  respectively 
concerned  in  them:  the  transgressor  will  not  fail  to  suffer  a  strict  ex- 
piation for  his  offenses,  and  will  he  the  instrument  of  deterring  others 
from  similar  misconduct;  and,  finally,  the  government  and  the  people 
will  be  equally  secured  for  endless  generations  in  the  enjoyment  of  the 
happy  effects  of  the  great  and  noble  virtues  of  our  illustrious  progenitors." 

The  purposes  sought  to  be  accomplished  by  the  laws  as  expressed  in  the 
prefatory  edict  of  the  Emperor  Kaung-Hee  second  of  the  present  dynasty, 
appear  to  be  as  commendable  as  those  on  which  any  European  code  or 
American  constitution  is   framed. 

"The  chief  ends  proposed  by  the  institution  of  punishments  in  the 
em^«,  have  been  to  guard  against  violence  and  injury  to  repress  in- 
ordinate desires,  and  to  secure  the  peace  and  tranquillity  of  an  honest 
and  unoffending  community. 


io82 


APPENDIX 


"Laws  have  accordingly  been  enacted,  numerous,  as  well  as  particular 
in  their  application,  and  subsequently  varied  and  augmented  at  different 
times,  as  circumstances  were  found  to  require,  but  without  ever  losing 
sight  of  those  principles  of  affection  and  benevolence,  of  which  our 
Illustrious  Predecessors,  who  laid  the  foundation  of  these  institutions, 
were  invariably  observant." 

The  manner  of  accomplishing  these  purposes,  however,  differs  radically 
from  that  pursued  in  the  West.  The  code  begins  with  preliminary  tables 
exhibiting  the  scale  of  punishments,  the  instruments  to  be  used  and  rules 
governing  pecuniary  payments  to  be  made  in  lieu  of  corporal  punishment, 
and  some  other  matters. 


Table  I 
Scale  of  Punishment  Offenses  against  Public  and  Private  Property. 


-1 

H 

0 
3 

•*  G 

fc  « 

u  — 

fl  >. 

B  " 

er-2 

c  12 

u  > 

0  0 

II 

0  3 

111 

.0. 

p. 

a. 

H 

n 

pa 

H 

U 

Amount  in 

oz.  of 

Ditto 

Ditto 

Ditto 

Ditto 

Ditto 

Silver 

20    blows  with 

the  bamboo 

I  or  less 

.    .    . 

.    .    . 

•    •    . 

30    blows  with 

the  bamboo 

I  to  10 

.    .    . 

.    .    . 

.    .    . 

,    ,    , 

40   blows  with 

the  bamboo 

20  

.    .    . 

.    .    . 

,    .    . 

,    .    . 

50   blows  with 

the  bamboo 

30  

•    .    . 

.    .    . 

.    .    . 

.    .    . 

60    blows  with 

the  bamboo 

40  

I  or  less 

I  or  less 

.    .    . 

70    blows  with 

the  bamboo 

50  

10 

I  or  less 

I  or  less 

80    blows  with 

the  bamboo 

60  

20 

20 

I  to  5  oz. 

I  to  5  oz 

I  or  less 

90    blows  with 

the  bamboo 

70  

30 

30 

10 

10 

I  to  2, 5 

100  blows  with 

the  bamboo 

80  

40 

40 

15 

15 

5 

60    blows  with 

the  bamboo 

and  I  year's 

banishment 

100 

50 

50 

20 

20 

7,5 

70    blows  with 

the  bamboo 

and  1 5^  year's 

banishment 

200 

60 

60 

25 

25 

10 

PENAL  CODE  OF  CHINA 
Table  I  (Continued) 


1083 


1 

ecuniary  Mal- 
versation 

1 

ribery  for  a 
lawful  object 

ill 

3 

1 

mbezzlement 
of  Public  Pro- 
perty 

Ol, 

H 

CQ 

« 

H 

U 

Amount  in 

oz.  of 

Ditto 

Ditto 

Ditto 

Ditto 

Ditto 

Silver 

80    blows  with 

the  bamboo 

and  2  year's 

banishment 

300 

70 

70  

30   

30 

12.5 

90    blows  with 

the  bamboo 

and  2  J^  year's 

banishment 

400  

80 

80 

35 

35 

15 

100  blows  with 

the  bamboo 

and  3  year's 

banishment. 

Dist.lees  and 

upwards. 

500  

90   

90 

40 

40  — 

17.5 

IOC  blows  with 

and  up- 

the bamboo 

wards 

and    perpet. 

banish.  2000 

100  

IOC  

45 

45 

20 

100  blows  with 

the  bamboo 

and    perpet. 

banish.  2500 

no  

no 

50  — 

50  — 

25 

100  blows  with 

the  bamboo 

and    perpet. 

banish.   3000 

120 

120 

55 

80  to  120 
If  an  in- 

55 

80  in  ex- 

30 

Death— to   be 

Upwards 

Upwards 

f erior 

treme 

strangled 

of  120  oz. 

of  120  oz. 

Officer. 

Cases 

80  in  ex- 

Death — to  be 

treme 

beheaded 

.   .    . 

.   .    . 

Cases 

io84 


APPENDIX 


Table  III 

Scale  of  pecuniary  Redemption  in  such  cases  as  are  not  legally  excluded 
from  the  Benefit  of  general  Acts  of  Grace  and  Pardon,  and  which, 
though  not  necessarily  redeemable,  have,  by  an  Edict  of  the  8th  Year  of 
the  Emperor   Kien-Lung,   been   made   redeemable   upon   Petition. 


Rank  of  the  Offender  Sentence 

An  Officer  above  the  4th  Rank       .  ]  f 

"         of  the  4th  Rank -,.      ,   , 

of  the  5th  or  6th  Rank  .    .  I    ^^  1  7 

"         of  the  7th  or  any  inferior  ^  Strangulation  ^ 

Rank,  or  a  Doctor  of  Literature  .    .  1     t-»  ^  n  ^-  I 

A  Graduate  or  Licentiate |     Decollation  | 

A  Private  Individual J  [^ 

An  Officer  above  the  4th  Rank  ...  1  f 

"         of  the  4th  Rank I 

of  the  5th  or  6th  Rank      .  |       per^etual  I 

of  the  7th  or  any  inferior  }■    r.^^Pu!"^.,  H 

Rank,  or  a  Doctor  of  Literature.   .  |     Banishment  ^, 

A  Graduate  or  Licenciate |  | 

A  Private  Individual j  [ 

An  Officer  above  the  4th  Rank   ...  1  f 

"         of  the  4th  Rank T^^r^^ror.,.  I 

"         of  the  5th  or  6th  Rank  .    .        1^^^^^/^ 

of  the  7th  or  any  inferior  [  J^T'ij^'fJ^.V  < 

Rank,  or  a  Doctor  of  Literature      .  |  1?^^^' w 

A  Graduate  or  Licentiate M^^  Bamboo 

A  Private  Individual j  (^ 


Pecuniary  Commuta- 
tion in  Ounces  of 
Silver 

[2,000 
5,000 
4,000 

2,500 
2,000 
1,200 

7,200 
3,000 
2,400 

1,500 

1,200 

720 

4,800 
2,000 
1,500 

1,000 
800 
480 


The  principle  of  Table  III  is  the  reverse  of  that  prevailing  in  Europe 
during  feudal  times.  The  higher  the  rank  of  the  offender,  the  greater 
the  pecuniary  compensation  required  in  lieu  of  the  punishment  indicated 
by  Table  I.  Table  II  prescribes  a  scale  of  pecuniary  redemption  by 
redeemable  punishments  based  on  the  same  principle.  The  highest  scale 
is  imposed  on  those  well  able  to  pay,  less  on  those  not  altogether  des- 
titute, still  less  on  the  young,  the  old  and  females.  Punishments  with 
the  bamboo  authorized  to  be  actually  inflicted  are  by  Table  IV  made 
much  less  than  the  nominal  punishments  indicated  in  Table  I,  thus  10 
blows  are  reduced  to  4,  50  to  20  and  100  to  40.  The  bamboo  to  be  used 
in  inflicting  the  blows  is  required  to  be  a  straight  and  polished  piece, 
the  branches  cut  away,  5  che  and  5  tsun  in  length,  in  breadth  i>^  f.yMn 
by  I  tsun,  in  weight,  iVa  kin.  These  are  the  dimensions  of  the  lesser 
bamboo  which  in  use  is  required  to  be  held  by  the  smaller  end.  The* 
che  is  a  measure  of  a  trifle  over  I2>4  inches  of  which  the  tsun  is  a  tenth 
part.  The  kin  exceeds  the  English  pound  by  about  one-third.  The  dimen- 
sions given  are  for  the  lesser  bamboo.  The  greater  is  of  the  same 
length,  2  tsun  by  i^,  and  weighing  2  kin.     The  Kia  or  Cangue  fastened 


PENAL  CODE  OF  CHINA  1085 

about  the  neck  as  a  punishment  is  described  as  *'a  square  frame  of  dry 
wood,  3  Che  long,  2  Che  9  Tsun  broad,  and  weighing  in  ordinary  cases 
25  Kin."  "The  greater  and  less  criminals  shall  all  be  confined  by  an  iron 
chain  7  Che  long  and  weighing  5  Kin."  "The  hand-cuffs  shall  be  made 
of  dry  wood  i  Che  and  6  Tsun  long  by  i  Tsun  in  thickness  and  shall 
be  used  to  confine  capital  offenders  of  the  male  sex  only."  Following 
these  tables,  descriptions  of  punishments  and  the  systems  used  to  inflict 
them,  comes  table  VI  entitled  "Degrees  Of  Relationship  And  Of  Mourn- 
ing, seemingly  a  wide  departure  from  the  subject  of  the  preceeding 
tables.  Perhaps  nothing  better  illustrates  the  peculiarities  of  Chinese 
customs,  principles  and  laws  than  this  table  which  is  as  follows : 

"The  mourning  for  the  nearest  among  relations  in  the  first  degree, 
shall  be  worn  for  three  years,  and  shall  be  made  of  the  coarsest  hempen 
cloth,  without  being  sewn  at  the  borders. 

The  mourning  for  other  relations  in  the  first  degree  shall  be  worn  for 
three  or  five  months,  and  be  made  of  middling  hempen  cloth,  sewn 
at  the  borders. 

The  mourning  for  relations  in  the  second  degree,  shall  be  worn  for 
nine  months,  and  be  made  of  coarse  linen-cloth. 

The  mourning  for  relations  in  the  third  degree,  shall  be  worn  for 
five  months,  and  be  made  of  middling  coarse  linen-cloth. 

The  mourning  for  relations  in  the  fourth  degree,  shall  be  worn  for 
three   months,   and  be   made  of   middling  fine   linen-cloth. 

The  full  mourning  for  three  years,  shall  be  worn : 

By  a  son,   for  his    father  or  mother. 

By  a  daughter,  for  her  father  or  mother,  when  living  under  the 
parents'  roof,  although  affianced  to  her  intended  husband,  or  although 
once  married,  if  afterwards  divorced  and  sent  home. 

By  a  son's  wife,  for  her  husband's  father  or  mother. 

By  a  son  and  his  wife,  for  his  father's  substituted  first  wife;  for 
the  wife  of  his  father  substituted  in  the  place  of  his  mother,  and  for 
the  wife  of  his  father,  who  nursed  him. 

By  an  inferior  wife's  son  and  his  wife,  for  his  natural  mother,  and 
for   his    father's   first   wife. 

By  an  adopted  son  and  his  wife,  for  his  adopted  parents. 

By  a  grandson  and  his  wife,  for  his  paternal  grand-parents. 

By  a  wife,  whether  the  first  or  inferior  one,  for  her  husband." 

The  first  section  of  the  ist  book,  begins:  "The  lowest  degree  of 
punishment  is  a  moderate  correction  inflicted  with  the  lesser  bamboo,  in 
order  that  the  transgressor  of  the  law  may  entertain  a  sense  of  shame 
for  his  past,  and  receive  a  salutary  admonition  with  respect  to  his  future, 
conduct,"  and  follows  with  schedules  of  the  degrees  of  offenses ;  the  num- 
ber of  blows  to  which  they  subject  the  offender  nominally  and  the  number 


io86  APPENDIX 

actually  to  be  inflicted;  from  the  ist  to  the  5th  with  the  lesser  bamboo 
and  those  ranging  from  60  to  100  blows  with  the  larger  bamboo.  The 
next  scale  of  punishments  is  that  of  temporary  banishment  to  a  distance 
not  exceeding  500  Lee,  10  Lee  being  equal  to  about  3  geographical  miles. 
Punishment  with  the  bamboo  is  also  inflicted  together  with  the  banish- 
ment. Perpetual  banishment  with  100  blows  of  the  bamboo  to  distances  of 
from  2000  to  3000  Lee  is  the  4th  degree  of  punishment.  The  5th  and 
highest  degree  is  death  by  strangulation  or  decollation.  Capital  sen- 
tences, except  for  atrocious  crimes,  are  not  to  be  executed  until  ratified 
by  the  Emperor. 

"Instruments  of  torture  of  the  following  dimensions,  may  be  used  upon 
an   investigation   of   a  charge   of   robbery   and   homicide: 

"The  instruments  for  compressing  the  ankle-bones,  shall  consist 
of  a  middle  piece,  3  Che  4  Tsun  long,  and  two  side-pieces,  3  Che  each 
in  length;  the  upper  end  of  each  piece  shall  be  circular,  and  i  Tsun 
8  decimals  in  diameter;  the  lower  ends  shall  be  cut  square,  and,  2  Tsun 
in  thickness :  At  a  distance  of  6  Tsun  from  the  lower  ends,  four  hollows,. 
or  sockets,  shall  be  excavated,  i  Tsun  6  decimals  in  diameter,  and  7 
decimals  of  a  Tsun  in  depth  each;  one,  on  each  side  the  middle-piece,, 
and  one  in  each  of  the  other  pieces,  to  correspond.  The  lower  ends 
being  fixed  and  immovable,  and  the  ankles  of  the  criminal  under  ex- 
amination being  lodged  between  the  sockets,  a  painful  compression  is 
effected  by  forcibly  drawing  together  the  upper  ends. 

"The  instrument  of  torture  for  compressing  the  fingers,  shall  consist 
of  5  small  round  sticks,  7  Tsun  in  length,  and  45/100  of  a  Tsun  in 
diameter  each:  the  application  of  this  instrument  is  nearly  similar  to 
that  of  the  former. 

"In  those  cases  wherein  the  use  of  torture  is  allowed,  the  offender, 
whenever  he  contumaciously  refuses  to  confess  the  truth,  shall  forthwith 
be  put  to  the  question  by  torture;  and  it  shall  be  lawful  to  repeat  the 
operation  a  second  time,  if  the  criminal  still  refuses  to  make  a  confession. 
On  the  other  hand,  any  magistrate  who  wantonly  or  arbitrarily  applies 
the  question  by  torture,  shall  be  tried  for  such  offense,  in  the  tribunal 
of  his  immediate  superior;  and  the  latter  shall  make  due  inquiry  into 
the  circumstances,  on  pain  of  being  himself  accused  before  the  supreme 
court  of  judicature  at  Pekin,  if  guilty  of  wilful  concealment  or  connivance. 

"Ordinary  prisoners  are  to  be  confined  with  the  small  chain :  the 
Cangue,  or  moveable  pillory  is  never  to  be  used,  except  expressly  directed 
by  the  laws;  nor  to  exceed  25  Kin  in  weight,  unless  otherwise  specially 
determined  and  expressed. 

"When  a  sentence  of  banishment  is  passed  against  the  relations,  or 
others,  implicated  in  the  guilt  of  an  offender,  the  corporal  punishment, 
which  is  usually  inflicted  in  different  degrees,  proportionate  to  the  duration 
of  the  banishment,  shall  be  understood  to  be  altogether  remitted. 


PENAL  CODE  OF  CHINA  1087 

"From  the  25th  of  the  4th  moon,  to  the  last  day  of  the  6th  moon  of 
each  year  (in  consideration  of  the  heat  at  that  season),  the  punishment 
of  the  lesser  bamboo  shall  be  remitted  altogether;  and  that  of  the 
greater  bamboo  shall  be  reduced  one  degree,  and  further  mitigated,  by 
inflicting  only  eight  for  every  ten  blows  to  which  the  offender  is 
condemned.  This  indulgence  shall  not,  however,  be  extended  to  any 
other  offenders  beside  those  who  are  actually  to  be  discharged  within 
the  period  above  mentioned.  During  the  same  interval,  a  particular  degree 
of  relaxation  shall  also  be  allowed  to  prisoners  in  general;  and  offenders 
sentenced  to  wear  the  Cangue  shall  be  permitted  to  lay  it  aside,  provided 
they  can  find  securities  for  their  subsequently  fulfilling  the  law,  by 
resuming  it  at  the  expiration  of  the  said  period. 

"Offenders  convicted  of  thieving,  robbing,  wounding,  or  assaulting  shall 
be  excluded  from  the  benefit  of  the  last-mentioned  regulation. 

"No  capital  execution  shall  take  place  during  the  period  of  the  first  or 
sixth  moons  of  any  year;  and  in  the  event  of  any  conviction  of  a 
crime  in  a  court  of  justice  during  the  said  intervals,  for  which  the  law 
directs  immediate  execution,  the  criminal  shall,  nevertheless,  be  respited 
until  the   first  day  of  the  moon  next  following. 

"The  mitigation  of  the  law  concerning  the  infliction  of  corporal  punish- 
ment during  the  summer  months,  shall  take  effect  without  any  particular 
reference  to  the  Emperor." 

In  Section  II  offenses  of  a  treasonable  nature  are  defined,  and  include, 
rebellion,  disloyalty,  desertion  (which  includes  the  murder  of  father, 
mother,  uncle,  aunt,  grandfather,  or  grandmother),  parricide  massacre 
which  is  the  murder  of  3  or  more  persons  in  one  family,  sacrilege.  "Im- 
piety is  discoverable  in  every  instance  of  disrespect  or  negligence  toward 
those  to  whom  we  owe  our  being,  and  by  whom  we  have  been  educated  and 
protected.  It  is  likewise  committed  by  those  who  inform  against  or 
insult  such  near  relations  while  living,  or  who  refuse  to  mourn  for 
their  loss,  and  to  show  respect  to  their  memory  when  dead."  "Discord 
in  families  is  the  breach  of  the  legal  or  natural  ties  which  are  founded 
on  connections  to  whom,  when  deceased,  the  ceremony  of  mourning  is 
legally  due."    Insubordination  and  incest,  are  also  classed  as  treasonable. 

"The  crimes  here  arranged  and  distributed  under  ten  heads,  being  dis- 
tinguished from  others  by  their  enormity,  are  always  punished  with 
the  utmost  rigor  of  the  law ;  and,  when  the  offense  is  capital,  it  is 
excepted  from  the  benefit  of  any  act  of  general  pardon ;  being  likewise, 
in  each  case,  a  direct  violation  of  the  ties  by  which  society  is  maintained, 
they  are  expressly  enumerated  in  the  introductory  part  of  this  code,  that 
the   people   may   learn   to    dread,   and   to   avoid   the   same." 

Section  III  designates  the  privileged  classes.  The  first  includes  the 
imperial  household  and  the  Emperor's  relations  as  well  as  those  of  his 
mother,  grandmother  and  wife,  within  the  first,  second  and  third  degrees. 


io88  APPENDIX 

The  second  class  includes  ancient  and  distinguished  servants  of  the 
crown.  The  third  those  who  have  performed  illustrious  service,  especially 
in  war.  The  fourth  those  eminent  for  wisdom  and  virtue,  the  fifth, 
men  distinguished  for  great  ability,  the  sixth  those  especially  distinguished 
for  zeal  in  the  public  service : 

"This  privilege  is  to  be  enjoyed  by  all  those  who  possess  the  first 
rank  in  the  empire ;  all  those  of  the  second,  who  are  at  the  same  time 
•employed  in  any  official  capacity  whatever;  and  all  those  of  the  third, 
whose    office    confers    any    civil    or    military    command." 

"The  Emperor  esteems  and  protects  those  who  are  distinguished  for 
their  wisdom  and  eminent  services,  even  to  the  second  and  third 
generation." 

Persons  included  within  these  privileged  classes,  cannot  be  tried  for 
ofTenses  other  than  those  of  a  treasonable  nature,  and  by  the  express 
command  of  the  Emperor.  A  similar  privilege  is  extended  to  the  father, 
mother,  grandmother,  wife,  son  and  grandson,  of  persons  belonging  to 
either  of  these  classes,  and  the  final  decision  of  all  such  causes  is  made 
by  the  Emperor.  Offenses  committed  by  officers  at  court  or  in  the 
provinces,  are  required  to  be  reported  to  the  Emperor  and  a  trial  can  only 
he  had  by  his  command.  An  inferior  officer  may  report  injurious  treat- 
ment by  his  superior,  as  well  as  a  superior  officer  make  complaint  of  his 
•subordinate.  Tartars  enrolled  as  banner-men  are  to  be  punished  with 
the  whip  instead  of  the  bamboo,  and  when  guilty  of  offenses  punishable 
with  banishment,  are  to  be  confined  with  the  cangue  for  a  number  of 
■days  proportioned  to  the  prescribed  banishment,  for  i  year  20  days, 
.2  years  30  days,  and  in  lieu  of  perpetual  banishment  from  45  to  90 
days.  Very  elaborate  provisions  are  made  with  reference  to  mitigations 
of  punishment,  in  consideration  of  the  relation  of  different  parties  to  the 
offense,  and  of  their  conduct  with  reference  to  confessions,  voluntary 
surrender  and  aid  in  procuring  the  arrest  of  participants  in  crime.  There 
is  a  large  class  of  offenses,  punishable  as  crimes  in  which  there  is  no 
intentional  wrong  doing,  founded  on  imputable  misconduct  and  negligence. 
The  punishment  in  these  cases  is  mitigated,  however.  Judicial  officers 
are  liable  to  punishment  for  unjust  judgments,  either  of  acquittal  or 
conviction,  and  the  clerk  of  the  court  as  well  as  the  judge  must  suffer, 
l)ut  with  a  reduction  of  three  degrees  where  the  sentence  has  been 
executed,  and  four  where  it  has  not  been.  A  reduction  of  sentences  by 
a  degree  means  dropping  down  to  the  next  lower  one  in  the  scale,  as 
from  50  blows  to  40,  two  years  banishment  to  a  year  and  a  half.  As 
a  part  of  their  punishment  for  dereliction  all  public  officials  are  liable  to 
degradation   or   dismissal   from   office. 

"When  any  offender  under  sentence  of  death  for  an  offense  not  ex- 
cluded from  the  contingent  benefit  of  an  act  of  grace,  shall  have  parents 
or  grandparents  who  are  sick,  infirm,  or  aged  above  seventy  years,  and 


PENAL  CODE  OF  CHINA  1089 

who  have  no  other  male  child  or  grandchild  above  the  age  of  sixteen 
to  support  them,  beside  such  capitally  convicted  offender,  this  circum- 
stance, after  having  been  investigated  and  ascertained  by  the  magistrate 
of  the  district,  shall  be  submitted  to  the  consideration  and  decision  of 
His  Imperial  Majesty." 

Astronomers  convicted  of  offenses  punishable  with  banishment  suffer 
100  blows  and  may  redeem  themselves  from  further  punishment  by  the 
payment  of  a  fine.  There  is  also  a  mitigation  of  punishments  in  favor 
of  artisans,  musicians  and  women,  for  minor  offenses.  Persons  under 
fifteen  or  over  seventy,  except  for  heinous  offenses,  are  allowed  to 
redeem  themselves.  Expedition  in  the  dispatch  of  public  business  is 
strictly  enjoined  and  punishment  is  meted  out  for  failure  to  execute  orders^ 
transmit  or  deliver  dispatches  or  carry  out  any  imperial  orders.  ''Five 
days  shall  be  allowed  to  discharge  business  of  small  importance,  ten  days 
for  business  of  ordinary  importance  and  twenty  days  for  business  of 
high  importance."  A  distinction  is  made  between  principles  and  accessaries 
differing  somewhat  from  that  observed  in  Europe  and  America. 

"As  for  instance ;  if  a  man  engages  a  stranger  to  strike  his  elder 
brother — the  younger  brother  shall  be  punished  with  ninety  blows,  and 
two  years  and  a  half  banishment,  for  the  offense  of  striking  his  elder; 
but  the  stranger  shall  be  only  punished  with  twenty  blows,  as  in  common 
cases  of  an  assault.  Also,  if  a  younger  relation  introduces  a  stranger 
to  steal  to  the  amount  of  ten  leang  or  ounces  of  silver  of  the  family 
property,  he  shall  only  be  punished  as  wasting,  or  disposing  of  without 
leave,  the  family  property  to  that  extent,  whereas  the  stranger  shall  be 
punished  as  in  common  cases  of  theft."     (Sec,  30). 

"All  relations  connected  in  the  first  and  second  degree  and  living  under 
the  same  roof,  maternal  grand-parents  and  their  grandchildren,  fathers 
and  mothers-in-law,  sons  and  daughters-in-law,  grandchildren's  wives,, 
husbands'  brothers  and  brothers'  wives,  when  mutually  assisting  each 
other,  and  concealing  the  offenses,  one  of  another,  and  moreover,  slaves 
and  hired  servants  assisting  their  masters  and  concealing  their  offenses, 
shall  not,  in  any  such  cases,  be  punishable  for  so  doing." 

"In  like  manner,  though  they  should  inform  their  relations  of  the 
measures  adopted  for  their  apprehension,  and  enable  them  to  conceal 
themselves,  and  finally  to  effect  their  escape,  they  shall  still  be  held 
innocent." 

"When  relations  in  the  third  and  fourth  degrees  assist  and  protect 
each  other  from  punishment  in  the  manner  here  described,  they  shall 
for  such  conduct  be  liable  to  punishment,  but  only  in  a  proportion  of 
three  degrees  less  than  would  have  been  inflicted  on  strangers  under 
the  same  circumstances."      (Sec.  32). 

Degrees  of  relationship  are  counted  quite  differently  from  the  rules 
either  of  the  Roman  or  common  law. 


1090  APPENDIX 

"Whatever  is  declared  in  the  laws  to  concern  relations  in  the  first 
degree,  grand-parents  or  grandchildren,  shall  likewise  be  understood  to 
extend  equally  to  great-grand-parents,  and  great-great-grand-parents, 
great-grand-children,  and  great-great-grand-children,  except  in  cases  of 
constructive  crimes,  when  the  law  shall  be  taken  literally." 

"Also,  the  father's  principal  wife,  the  father's  wife  substituted  in  the 
place  of  the  principal  wife  after  her  death,  the  father's  wife  substituted 
in  the  place  of  the  natural  mother  upon  her  death,  and  the  adopted  mother, 
shall  all  hold  equal  rank  with  the  natural  mother,  and  be  understood 
to  be  referred  to,  in  all  laws  in  which  the  mother  of  the  part^  con- 
cerned is  only  stated  generally,  except  in  the  case  of  such  mother  having 
been  divorced,  or  in  the  case  of  her  killing,  or  attempting  to  kill,  such 
son-in-law." 

"Also,  except  in  cases  of  constructive  offenses,  whatever  the  law  states 
relative  to  the  sons,  shall  be  applicable  to  the  daughters  also."     (Sec.  38). 

"A  day  shall  be  considered  to  have  elapsed  when  the  hundred  divisions 
are  completed — (at  present,  according  to  the  Imperial  Almanac,  the  day 
consists  of  ninety-six  divisions).  A  day's  work  or  labour  shall,  however, 
be  computed  only  from  the  rising  to  the  setting  of  the  sun." 

"A  legal  year  shall  consist  of  360  days  complete,  but  a  man's  age 
shall  be  computed  to  the  number  of  years  of  the  cycle  elapsed  since  his 
name  and  birth  were  recorded  in  the  public  register." 

"When  the  law  speaks  of  several  persons,  three  at  least  are  to  be 
understood;  but  when  simply  stating  the  circumstances  of  an  agreement 
or  combination,  any  number  not  less  than  two  may  be  implied."    (Sec.  41). 

The  imperfection  of  the  code  and  the  difficulties  attending  the  decision 
of  cases  not  clearly  provided  for,  are  recognized  in  several  places. 
Section  XLIV  provides : 

"From  the  impracticability  of  providing  for  every  possible  contingency, 
there  may  be  cases  to  which  no  laws  or  statutes  are  precisely  applicable; 
such  cases  may  then  be  determined,  by  an  accurate  comparison  with 
others  which  are  already  provided  for,  and  which  approach  most  nearly 
to  those  under  investigation,  in  order  to  ascertain  afterwards  to  what 
extent  an  aggravation  or  mitigation  of  the  punishment  would  be  equitable. 

Provisional  sentence  conformable  thereto  shall  be  laid  before  the 
superior  magistrates,  and  after  receiving  their  approbation,  be  submitted 
to  the  Emperor's  final  decision.  Any  erroneous  judgment  which  may  be 
pronounced  in  consequence  of  adopting  a  more  summary  mode  of  pro- 
ceeding, in  cases  of  a  doubtful  nature,  shall  be  punished  as  a  wilful 
deviation    from   justice." 

"All  the  appointments  and  removals  of  officers,  whether  civil  or  military, 
shall  depend  solely  upon  the  authority  of  the  Emperor.  If  any  great 
officer  of  state  presumes  to  confer  any  appointment  upon  his  own  authority. 


PENAL  CODE  OF  CHINA  1091 

he  shall  suffer  death  by  being  beheaded,  after  remaining  in  prison  the 
usual  time."     (Sec.  48.) 

"The  official  messengers  who  are  employed  in  the  several  districts 
of  the  empire  under  the  jurisdiction  of  the  cities  of  the  first,  second, 
and  third  order,  for  the  transmission  of  dispatches  relative  to  ordinary 
public  business,  or  to  the  punishment  of  public  transgressors,  shall  perform 
the  services  upon  which  they  are  respectively  employed,  within  the 
periods  which,  with  a  due  regard  to  the  distance,  and  other  circumstances, 
are  in  each  case  by  law  established.  For  one  day's  delay  beyond  the 
legal  period,  they  shall  be  liable  to  a  punishment  of  10  blows,  which  shall  be 
increased  one  degree,  until  it  amounts  to  40  blows,  for  every  additional 
day's  delay.  If  the  governing  magistrates  in  any  of  the  aforementioned 
districts  and  divisions  of  command,  do  not,  when  the  administration  of 
public  affairs  requires,  send  immediately  the  necessary  orders  for  in- 
structions to  the  officers  subject  to  their  authority,  such  neglect  shall  be 
punished  with  100  blows." 

'The  attention  due  to  the  repairing  and  inspecting  of  roads  and 
bridges ;  to  accidents  and  affrays ;  to  the  seizing  of  criminals ;  confisca- 
tion of  property,  and  to  any  other  such  specific  objects,  being  noticed 
and  enforced  elsewhere  in  this  code,  the  neglect  thereof  is  not  to  be 
punished  as  a  breach  of  this  general  article."    (Sec.  51). 

As  official  appointments  are  in  theory  at  least,  based  on  the  qualifications 
of  candidates,  as  ascertained  from  the  regular  literary  examinations, 
it  is  regarded  as  of  great  importance,  that  the  examiners  be  fair  and 
make  true  reports. 

"Whoever  confers  degrees  of  honour  on  persons  who  are  not  worthy, 
or  who  are  under  any  disqualifications;  and  whoever,  on  the  contrary, 
refuses  at  the  proper  time  to  confer  such  degrees  upon  those  who  are 
entitled  to  them  by  their  merit,  as  well  as  duly  qualified,  shall  be 
punished  with  80  blows  for  a  single  instance  of  such  offense,  and  one 
degree  more  severely,  as  far  as  100  blows,  for  every  two  additional 
instances  which  may  be  proved  upon  investigation.  If  the  individual  so 
improperly  graduated  is  aware  of  his  being  ineligible,  he  shall  be  punished 
as  a  participator  in  the  offense,  but  otherwise  shall  be  held  innocent." 

"If  the  presiding  examiner  of  the  merits  of  the  candidates  designedly 
makes  a  false  report  in  any  instance,  by  elevating  or  depressing  their 
respective  claims,  the  punishment  of  such  examiner  shall  be  two  degrees 
less  than  that  of  the  officer  who  confers  the  degrees  improperly.  If 
the  report  is  erroneous,  but  not  designedly  false,  the  punishment  shall 
be  less  by  three  degrees,  but  liable  in  all  cases  to  be  increased  whenever 
there   is   conviction  of  bribery  and  corruption."      (Sec.   52.) 

"The  laws  and  statutes  of  the  empire  have  been  framed  with  delibera- 
tion, are  sanctioned  with  appropriate  penalties  against  transgressors, 
and  are  published  to  the  world  for  perpetual  observance." 


1092  APPENDIX 

"All  the  officers  and  others  in  the  employ  of  government  ought  to 
study  diligently,  and  make  themselves  perfect  in  the  knowledge  of  these 
laws,  so  as  to  be  able  to  explain  clearly  their  meaning  and  intent,, 
and  to   superintend   and  ensure  their  execution." 

"At  the  close  of  every  year,  the  officers  and  other  persons  employed' 
by  government,  in  every  one  of  the  exterior  and  interior  departments, 
shall  undergo  examination  on  this  subject  before  their  respective  su- 
periors, and  if  they  are  found  in  any  respect  incompetent  to  explain  the 
nature,  or  to  comprehend  the  several  objects,  of  the  laws,  they  shall 
forfeit  one  month's  salary  when  holding  official,  and  receive  40  blows 
when  holding  any  of  the  inferior,  situations." 

"All  those  private  individuals,  whether  husbandmen,  or  artificers  or 
whatever  else  may  be  their  calling  or  profession,  who  are  found  capable 
of  explaining  the  nature,  and  comprehending  the  objects,  of  the  laws, 
shall  receive  pardon  in  all  cases  of  offenses  resulting  purely  from 
accident,  or  imputable  to  them  only  from  the  guilt  of  others,  provided  it 
be  the  first  offense,  and  not  implicated  with  any  act  of  treason  or 
rebellion." 

"Whosoever,  in  the  employ  of  government,  fraudulently  perverts  or  mis- 
construes, or  presumptuously  changes,  abrogates  or  confounds  the  law 
upon  any  case,  so  as  to  produce  disturbance  and  insurrection  in  the 
country,  shall  suffer  death  by  being  beheaded,  after  the  usual  period  of 
imprisonment."     (Sec.  61.) 

"Whenever  an  Imperial  Edict  is  issued  on  any  subject,  whoever  wilfully 
omits  the  execution  of  any  thing  that  is  commanded  therein,  shall  be 
punished  with  100  blows.  In  the  case  of  the  edict  of  the  Imperial  prince 
elect,  the  punishment  shall  be  the  same.  A  failure  in  any  such  respect, 
from  neglect  or  inadvertence,  shall  be  punished  three  degrees  less  severely." 

"Moreover,  any  one  who  delays  or  postpones  the  execution  of  an 
Imperial  edict  for  one  day,  shall  be  punished  with  50  blows,  and  one 
degree  more  severely  as  far  as  100  blows  for  each  additional  day  of 
delay."     (Sec.  62.) 

Book  II  of  the  Second  Division  of  which  Section  LXI  is  the  first, 
relates  to  the  conduct  of  magistrates  and  enjoins  the  performance  of 
various  official  duties. 

"When  a  family  has  omitted  to  make  any  entry  whatever  in  the 
public  register,  the  head  or  master  thereof,  if  possessing  any  lands 
chargeable  with  contributions  to  the  revenue,  shall  be  punished  with 
100  blows;  but  if  he  possess  no  such  property,  with  80  blows  only,  and 
the  family  shall  in  the  former  case  be  registered  as  accountable  for 
future  public  service,  according  to  the  amount  of  its  taxable  property, 
and  in  the  latter,  according  to  the  number  of  male  individuals  of  full 
age  of  which  it  consists." 

"When   any   head   or   master   of   a   family,   has   among  his   household 


PENAL  CODE  OF  CHINA  1093 

strangers  who  constitute,  in  fact,  a  distinct  family,  but  omits  to  make 
a  corresponding  entry  in  the  public  register,  or  registers  them  as  members 
of  his  own  family,  he  shall  be  punished  with  100  blows,  if  any  such 
stranger  possesses  taxable  property,  and  with  80  blows  if  he  should 
not  possess  any;  and  in  all  cases,  the  register  shall  be  duly  corrected, 
by  the  insertion  of  a  description  of  such  strangers  as  a  distinct  family." 
(Sec.    75.) 

"All  persons  whatsoever  shall  be  registered  according  to  their  accus- 
tomed professions  or  vocations,  whether  civil  or  military,  whether  post- 
men, artisans,  physicians,  astrologers,  laborers,  musicians,  or  of  any 
other  denomination  whatever;  wherever  a  military  employment  is  rep- 
resented as  a  civil  one,  or  an  artisan  endeavours  to  pass  himself  as 
a  mere  laborer,  or  when  any  other  device  is  employed  to  lessen  the 
individual's  liability  to  the  public  service,  such  individual  shall  be  pun- 
ished with  80  blows,  and  tfhe  magistrate  who  negligently  consents 
to  such  omission,  irregularity,  or  confusion  in  the  entries  on  the  public 
register,  shall  be  equally  punishable." 

"Whoever  falsely  represents  himself  to  belong  to  any  military  estab- 
lishment in  garrison,  or  in  the  field,  and  thereby  evades  all  public 
service  whatever,  shall  receive  100  blows,  and  be  sent  into  the  ulterior  and 
perpetual  military  banishment,"    (Sec.  76.) 

"No  religious  houses  of  the  sects  of  Foe  and  Tao-se,  except  those 
which  have  been  heretofore  lawfully  constituted  and  established,  shall 
be  privately  maintained,  appropriated,  or  endowed,  whether  upon  a  new, 
or  in  addition  to  an  old  foundation,  or  in  any  other  manner  whatsoever." 
(Sec.  -]-].) 

"Whoever  appoints  his  heir  and  representative  unlawfully,  shall  be 
punished  with  80  blows.  When  the  first  wife  has  completed  her  fiftieth 
year,  and  has  no  children  living,  it  is  allowed  to  appoint  the  eldest 
son  by  the  other  wives  to  the  inheritance;  but  if  any  other  than  the 
eldest  of  such  sons  is  so  appointed,  it  shall  be  deemed  a  breach  af 
this  law." 

"If  a  person,  not  having  sons  himself,  educates  and  adopts  the  son 
of  a  kinsman,  having  other  sons,  but  afterwards  dismisses  such  adopted 
son,  such  person  shall  be  punished  with  100  blows,  and  the  son  shall 
be  sent  back  to,  and  supported,  as  before,  by  the  adopting  parents." 

"Nevertheless  if  the  adopting  parent  shall  have  subsequently  had 
other  sons,  and  the  natural  parents,  having  no  other,  are  desirous  of 
receiving  their  son  back  again,  they  shall  be  at  liberty  so  to  do." 

"Whoever  asks  for,  and  receives  into  his  house  as  his  adopted  son, 
a  person  of  a  different  family  name,  is  guilty  of  confounding  family 
distinctions,  and  shall  therefore  be  punished  with  60  blows;  the  son  so 
adopted  shall,  in  such  cases,  always  be  returned  to  his  family.  In  like 
manner,  whoever  gives  away  his  son  to  be  adopted  into  a  family  of  a 


I094  APPENDIX 

different  name,  shall  suffer  the  punishment  decreed  by  this  law,  and 
receive  such  son  back  again.  Nevertheless,  it  shall  be  lawful  to  adopt 
a  foundling  under  three  years  of  age,  and  to  give  the  child  the  name 
of  the  family  into  which  it  is  adopted;  but  such  adopted  child  shall 
not  be  entitled  to  the  inheritance  upon  failure  of  the  children  by  blood." 
"If  the  relative  appointed  to  the  inheritance,  on  failure  of  children, 
is  not  the  eldest  in  succession,  it  shall  be  deemed  a  breach  of  this  law; 
the  relative  so  appointed  shall  be  sent  back  to  his  place  in  his  own 
family,   and  the  lawful  heir  appointed   in   his   stead." 

"Whoever  brings  up  in  his  family,  as  a  slave,  the  male  or  female 
child  of  a  freeman,  shall  be  punished  with  lOO  blows,  and  the  child 
shall  regain  its  freedom."     (Sec.  78.) 

"In  all  districts  of  the  empire,  100  families  shall  form  a  division,  and 
shall  consult  together,  in  order  to  provide  a  head  and  ten  assessors, 
who  are  to  attend  successively,  in  order  to  assist  in  the  collection  of  the 
taxes,  and  duly  to  ascertain  the  performance  of  all  other  public  duties 
and   services." 

If  there  are  any  other  persons  who,  falsely  assuming  authority  under 
the  characters  of  deputies,  assistants,  and  the  like,  create  disturbances 
and  harass  the  people,  they  shall  be  punished  with  100  blows  and 
Ijanished." 

"The  elders,  who  are  to  be  appointed  to  these  offices,  shall  be  chosen 
among  the  most  respectable  persons  of  maturer  age  who  belong  to  the 
district,  and  no  person  shall  be  eligible  to,  or  accept,  the  said  offices, 
who  has  ever  held  any  civil  or  military  employments,  or  who  has 
ever  been  convicted  of  any  crime.  Whoever  accepts  the  same,  in  defiance 
of  this  law,  shall  be  punished  with  60  blows,  and  dismissed;  the  officer 
of  government,  who  sanctions  such  undue  appointment,  shall  be  punished 
with  40  blows,  at  the  least,  and  eventually  suffer  such  further  punishment 
as  he  may  be  liable  to,  in  consequence  of  being  guilty  of  receiving  a 
bribe  for  an  unlawful  purpose."     (Sec.  83.) 

"Sons  or  grandsons  who  form  to  themselves  a  separate  establishment 
for  their  parents  and  grand-parents,  and  also  make  a  division  of  the 
family  property,  shall,  provided  such  parents  and  grand-parents  personally 
prosecute,  be  punished,  on  conviction,  with  100  blows." 

"Also,  the  sons  of  the  same  parents,  who  shall  form  to  themselves 
separate  etsablishments,  and  divide  their  respective  proportions  of  the 
inheritance,  previous  to  the  expiration  of  the  lawful  period  of  mourning, 
shall  be  punished  with  80  blows,  provided  they  are  convicted  upon  an 
information  laid  by  an  elder  relation  in  the  first  degree,  and  provided 
that  they  had  not  been  expressly  directed  to  do  so  in  the  last  will  of 
their  parent  deceased."     (Sec.  87.) 

"Any  younger  and  inferior  member  of  a  family,  living  with  the  others 
under  the  same  roof,  who  applies  to  his  own  use,  or  otherwise  disposes 


PENAL  CODE  OF  CHINA  1095 

of,  the  joint  family-property  without  permission,  shall  be  punished  with 
20  blows,  if  the  value  amounts  to  10  ounces  of  silver;  and  one  degree 
more  severely  as  far  as  100  blows,  for  every  additional  10  ounces  value." 

"An  unjust  or  partial  division  of  the  patrimony  between  the  elder 
and  younger  branches  of  a  family,  upon  their  separation,  shall  likewise  be 
punished  agreeably  to  the  tenor  of  this  law."     (Sec.  88.) 

"All  poor  destitute  widowers  and  widows,  the  fatherless  and  childless, 
the  helpless  and  the  inftrm,  shall  receive  sufficient  maintenance  and  pro- 
tection from  the  magistrates  of  their  native  city  or  district,  whenever 
they  have  neither  relations  nor  connexions  upon  whom  they  can  depend 
for  support.  Any  magistrate  refusing  such  maintenance  and  protection, 
shall  be  punished  with  60  blows." 

"Also,  when  any  such  persons  are  maintained  and  protected  by  govern- 
ment, the  superintending  magistrate  and  his  subordinates,  if  failing  to 
afford  them  the  legal  allowance  of  food  and  raiment,  shall  be  punished 
in  proportion  to  the  amount  of  the  deficiency,  according  to  the  law 
against  an  embezzlement  of  government  stores."     (Sec.  89.) 

There  are  numerous  regulations  designed  to  enforce  the  collection  of 
taxes  and  prevent  frauds  on  the  revenue.  Provision  is  made  by  Section 
XCI  for  an  abatement  of  taxes  in  districts  suffering  from  a  temporary 
calamity  as  excessive  rain,  overflows,  drought,  unseasonable  frosts,  locust? 
and  the  like.  Public  officers  are  required  to  examine  and  report  any 
such  cases.  The  system  of  mortgaging  land  is  somewhat  peculiar  and 
seems  to  be  designed  to  protect  the  revenue. 

"Whoever  takes  lands  or  tenements  by  way  of  mortgage,  without  enter- 
ing into  a  regular  contract,  duly  authenticated  and  assessed  with  the  legal 
duty  by  the  proper  magistrate,  shall  receive  50  blows,  and  forfeit  to 
government  half  the  consideration  money  of  the  mortgage.  If  the 
mortgagor  does  not  transfer  to  the  mortgagee  unreservedly  the  whole 
produce  of  the  land  upon  which  the  taxes  are  charged  and  made  payable 
to  government,  he  shall  be  punished  in  proportion  to  the  extent  of  the 
property,  in  the  following  manner:  if  from  one  to  five  men,  with  40 
blows,  and  one  degree  more  severely  for  each  five  additional  meu,  until 
the  punishment  amounts  to  100  blows ;  the  land  so  illegally  mortgaged 
shall  be  forfeited  to  government." 

"If  the  proprietor  of  lands  and  tenements  already  mortgaged,  attempts 
to  raise  money  thereon  by  a  second  mortgage,  the  amount  obtained  upon 
such  false  pretences  shall  be  ascertained,  and  the  offender  punished  ac- 
cordingly, as  in  the  case  of  an  ordinary  theft  to  the  same  extent,  except 
that  he  shall  not  be  liable  to  be  branded." 

"The  pecuniary  consideration  received  by  the  fraudulent  mortgagor 
shall  be  restored  always  to  the  mortgagee,  unless  such  mortgagee  is  him- 
self privy  to  the  unlawfulness  of  the  transaction,  in  which  case  it  shall 
be  forfeited  to  government." 


1096  APPENDIX 

"The  said  mortgagee  and  the  negotiator  of  the  bargain,  when  either  of 
them  is  acquainted  with  the  unlawfulness  of  the  transaction,  shall  more- 
over receive  the  same  punishment  as  the  mortgagor.  In  all  such  cases, 
the  first  and  lawful  mortgagee  shall  remain  in  possession." 

"If,  after  the  period,  specified  in  the  deed  by  which  any  lands  or 
tenements  are  professed  to  be  mortgaged  or  pledged  by  the  proprietor, 
is  expired,  the  said  proprietor  offers  to  redeem  his  property  by  the 
payment  back  of  the  original  consideration  upon  which  he  had  parted 
with  it,  it  shall  not  be  allowed  the  mortgage  to  refuse  to  comply; 
any  instance  of  such  refusal  shall  subject  him  to  the  punishment  of  40 
blows,  and  to  the  forfeiture  of  all  the  produce  of  the  land  which  he 
may  have  reaped  after  the  expiration  of  such  period.  Nevertheless, 
this  law  shall  only  have  effect  when  the  proprietor  is  really  able  at 
the  expiration  of  the  prescribed  period  to  redeem  his  lands,  and  not 
otherwise."     (Sec.  95.) 

The  duty  of  cultivating  the  land  is  strictly  unjoined. 

"In  every  district  of  the  empire,  when  the  lands  which  have  been 
entered  on  the  public  registers  as  liable  to  the  land-tax,  and  as  sub- 
jecting the  proprietors  to  the  demands  of  personal  service,  are,  without 
any  cause,  such  as  inundation,  drought,  or  other  calamity,  neglected 
and  omitted  to  be  duly  cultivated ;  as,  for  instance,  if  the  established 
mulberry,  hemp,  and  other  similar  plantations  are  not  duly  kept  up, 
the  head  inhabitant  of  the  district  shall  be  held  responsible,  and  punished 
according  to  the  relative  extent  of  the  uncultivated  to  that  of  the  cul- 
tivated portion  of  the  registered  lands  in  his  district.  If  the  uncultivated 
portion  is  one-tenth  of  the  whole,  he  shall  be  punished  with  20  blows, 
and  one  degree  more  severely,  as  far  as  80  blows,  for  each  additional 
tenth  uncultivated.  The  presiding  magistrate  of  the  city  of  the  third 
order,  to  which  the  district  is  subjected,  shall  likewise  be  punishable, 
but  less  severely  by  two  degrees  in  each  case  than  the  head  inhabitant. 
The  assessors  of  the  chief  magistrate  shall  suffer  punishment  as  accessaries 
to  his  offense." 

"The  individual  proprietor  also,  who  suffers  his  land  to  remain  un- 
cultivated, or  who  neglects  his  mulberry,  hemp,  or  other  plantations, 
shall  be  punished  according  to  the  proportion  which  the  neglected  part 
bears  to  the  whole  of  his  registered  property,  if  it  amounts  to  one-fifth, 
with  20  blows,  and  one  degree  more  severely  for  every  additional  fifth 
left  uncultivated." 

"His  lands  shall  moreover  be  assessed  with  the  land-tax  in  proportion 
to  the  amount  of  the  produce  they  are  judged  capable  of  yielding,  and 
the  contribution  shall  be  levied  on  the  proprietor  accordingly."     (Sec.  97.) 

Trespasses  on  land  and  taking  the  fruit  belonging  to  others  is  punished 
with   the   bamboo. 

"When   a   marriage   is    intended   to   be   contracted,   it    shall   be,   in   the 


PENAL  CODE  OF  CHINA  1097 

first  instance,  reciprocally  explained  to,  and  clearly  understood  by,  the 
families  interested,  whether  the  parties  who  design  to  marry  are  or  are 
not  diseased,  infirm,  aged,  or  under  age;  and  whether  they  are  the 
children  of  their  parents  by  blood,  or  only  by  adoption;  if  either  of  the 
contracting  families  object,  the  proceedings  shall  be  carried  no  further; 
if  they  still  approve,  they  shall  then  in  conjunction  with  the  negotiators 
of  the  marriage,  if  such  there  be,  draw  up  the  marriage-articles,  and 
determine  the  amount  of  the  marriage  presents." 

"If,  after  the  woman  is  thus  regularly  affianced  by  the  recognition  of 
the  marriage-articles,  or  by  a  personal  interview  and  agreement  between 
the  families,  the  family  of  the  intended  bride  should  repent  having 
entered  into  the  contract,  and  refuse  to  execute  it,  the  person  amongst 
them  who  had  authority  to  give  her  away  shall  be  punished  with  50 
blows,  and  the  marriage  completed  agreeably  to  the  original  contract. 
Although  the  marriage-articles  should  not  have  been  drawn  up  in  writing, 
the  acceptance  of  the  marriage-presents  shall  be  sufficient  evidence  of 
the  agreement  between  the  parties." 

"If  after  the  female  is  affianced,  but  previous  to  the  completion  of 
the  marriage,  her  family  promises  her  in  marriage  to  another,  the 
person  having  authority  to  give  her  away  shall  be  punished  with  70 
blows ;  if  such  promise  is  made  after  the  first  marriage  is  actually 
completed  (that  is  to  say,  the  bride  is  personally  presented  to  and 
received  by  the  bridegroom),  the  punishment  shall  be  increased  to  80 
blows." 

"If  the  family  of  the  intended  bridegroom  after  having  agreed  as 
aforesaid,  repents  of  the  contract,  and  makes  marriage-presents  to 
another  woman,  the  same  punishment  shall  be  inflicted,  as  in  the  cases 
already  mentioned.  The  bridegroom  shall  be  obliged  to  receive  his 
originally  intended  bride;  and  the  female,  to  whom  he  is  secondly 
affianced,  shall  retain  the  marriage-presents  made  to  her,  and  be  at  the 
same  time  at  liberty  to  marry  another  person."     (Sec.  loi.) 

"Whoever  lends  any  one  of  his  wives,  to  be  hired  as  a  temporary 
wife,  shall  be  punished  with  80  blows, — whoever  lends  his  daughter  *n. 
like  manner,  shall  be  punished  with  60  blows;  the  wife  or  daughter 
in  such  cases,  shall  not  be  held  responsible." 

"Whoever,  falsely  representing  any  of  his  wives  as  his  sister,  gives 
her  away  in  marriage,  shall  receive  100  blows,  and  the  wife  consenting 
thereto,  shall  be  punished  with  80  blows." 

"Those  who  knowingly  receive  in  marriage  the  wives,  or  hire  for  a 
limited  time  the  wives  or  daughters  of  others,  shall  participate  equally 
in  the  aforesaid  punishment,  and  the  parties  thus  unlawfully  connected, 
shall  be  separated;  the  daughter  shall  be  returned  to  her  parents,  and 
the  wife  to  the  family  to  which  she  originally  belonged;  the  pecuniary 
consideration    in    each    case    shall   be    forfeited    to    government.     Those 


logS  APPENDIX 

who  ignorantly  receive  such  persons  in  marriage,  contrary  to  the  laws, 
shall  be  excused,  and  recover  the  amount  of  the  marriage-presents." 
(Sec.  I02.) 

"Whoever  degrades  his  first  or  principal  wife  to  the  condition  of  an 
inferior  wife  or  concubine,  shall  be  punished  with  loo  blows.  Whoever, 
during  the  life-time,  of  his  first  wife,  raises  an  inferior  wife  to  the 
rank  and  condition  of  a  first  wife,  shall  be  punished  with  90  blows,  and 
in  both  cases,  each  of  the  several  wives  shall  be  replaced  in  the  rank 
to   which   she   was   originally  entitled   upon   her   marriage." 

"Whoever,  having  a  first  wife  living,  enters  into  marriage  with  another 
female  as  a  first  wife,  shall  likewise  be  punished  with  90  blows;  and 
the  marriage  being  considered  null  and  void,  the  parties  shall  be  separated, 
and  the  woman  returned  to  her  parents."     (Sec.  103.) 

"If  any  man  or  woman  enters  into  an  equal  marriage  during  the 
legal  period  of  mourning  for  a  deceased  parent,  or  any  widow  enters 
into  a  second  and  equal  marriage  within  the  legal  period  of  mourning 
for  her  deceased  husband,  the  offending  party  shall  be  punished  with 
100  blows." 

"If  it  is  not  an  equal  match,  that  is  to  say,  if  a  man  takes  an  inferior 
wife  from  a  subordinate  rank  or  a  woman  connects  herself  in  marriage 
as  one  of  the  inferior  wives  of  her  husband,  the  punishment  attending 
a  breach  of  this  law  shall  be  less  by  two  degrees."    (Sec.  105.) 

"Whoever  marries  a  wife  or  a  husband  upon  equal  terms  of  espousal 
having  a  father,  mother,  grand-father  or  grand-mother  at  the  same 
time  under  confinement  in  prison  for  a  capital  offense,  shall  be  punished 
with  80  blows,' — whoever  at  such  time  receives  in  marriage,  or  becomes 
by  marriage,  a  subordinate  wife,  shall  suffer  punishment  less  by  two 
degrees." 

"Nevertheless,  if  any  ruch  person  enters  into  the  marriage  state  at 
such  period,  by  the  express  command  of  his  or  her  parent  or  grand- 
parent in  prison,  no  punishment  shall  ensue,  provided  the  usual  feast 
and  entertainment  is  omitted;  otherwise  a  punishment  of  80  blows  shall 
be  inflicted."     (Sec.   106.) 

"Whenever  any  persons  having  the  same  family-name  intermarry, 
the  parties  and  the  contractor  of  the  marriage  shall  each  receive  60 
blows,  and  the  marriage  being  null  and  void,  the  man  and  woman 
shall  be  separated,  and  the  marriage-presents  forfeited  to  government." 
(Sec.   107.) 

"In  general  all  marriages  between  persons  who  through  another  marriage 
are  already  related  to  each  other  in  any  of  the  four  degrees,  and  all 
marriages  with  sisters  by  the  same  mother,  though  by  a  different  father, 
or  with  the  daughters  of  a  wife's  former  husband,  shall  be  considered 
as  incestuous,  and  punished  according  to  the  law  against  a  criminal 
intercourse  with   such   relations." 


PENAL  CODE  OF  CHINA        .  1099 

"A  man  shall  not  marry  his  father's  or  mother's  sister-in-law,  his 
father's  or  mother's  aunt's  daughter,  his  son-in-law's  or  daughter-in-law's 
sister,  or  his  grandson's  wife's  sister,  on  pain  of  receiving  100  blows 
for  such  offense." 

"Whoever  marries  his  mother's  brothers  or  mother's  sister's  daughter, 
shari  receive  80  blows,  and  in  these  as  well  as  the  foregoing  cases  the 
marriage  shall  be  annulled  and  the  marriage-present  forfeited."    (Sec.  108.) 

"Whoever  marries  a  female  relation  beyond  the  fourth  degree,  or 
the  widow  of  a  male  relation  equally  remote,  shall  be  punished  with 
100  blows.  Whoever  marries  the  widow  of  a  relation  in  the  fourth 
degree,  or  of  a  sister's  son,  shall  be  punished  with  60  blows,  and  one 
year's  banishment.  Whoever  marries  the  widow  of  any  nearer  relation, 
shall  be  punished  according  to  the  law  against  incestuous  connexions 
with  such  persons.  Nevertheless,  when  the  connexion  had  been  broken 
by  a  divorce,  or  an  intervening  marriage  with  a  stranger,  the  offence 
shall  in  general  be  only  punished  with  80  blows." 

"Whoever  receives  in  marriage  any  of  his  father's  or  grandfather's 
former  wives,  or  his  father's  sisters,  shall,  whether  they  have  been 
divorced  or  re-married,  in  all  cases  suffer  death,  by  being  beheaded. 
Whoever  marries  his  brother's  widow,  shall  be  strangled.'^ 

"The  foregoing  cases,  in  general  apply  to  first  wives  only,  and  the 
punishment  of  marrying  the  inferior  wives  of  such  relatives  as  aforesaid, 
shall  be  less  in  each  case  by  two  degrees." 

"Whoever  marries  any  female  relation  in  the  fourth,  or  any  nearer 
degree,  shall  be  punished  according  to  the  law  concerning  incest,  and  all 
such   incestuous   marriages   shall  be  null  and  void."      (Sec.    109.) 

Officers  of  government  marrying  into  families  subject  to  their  juris- 
diction or  having  an  interest  in  legal  proceedings  before  them,  are  subject 
to  80  blows.  For  forcibly  abducting  and  marrying  a  woman  death  by 
strangulation  is  the  penalty.  An  officer  or  clerk  of  government  who 
marries  a  female  musician  or  comedian  is  punishable  with  60  blows  and 
the  marriage  declared  void.  Priests  of  Foe  or  Tao-sse,  who  marry, 
are  punishable  with  80  blows  and  expulsion  from  the  order.  A  master 
who  obtains  in  marriage  for  his  slave  the  daughter  of  a  free  man,  is 
punishable  with  80  blows  and  the  members  of  her  family,  who  knowingly 
consent,  are  subject  to  like  punishment. 

"If  a  husband  repudiates  his  first  wife,  without  her  having  broken 
the  matrimonial  connexion  by  the  crime  of  adultery,  or  otherwise;  and 
without  her  having  furnished  him  with  any  of  the  seven  justifying 
causes  of  divorce,  he  shall  in  every  such  case  be  punishable  with  80 
blows.  Moreover,  although  one  of  the  seven  justifying  causes  of  divorce 
should  be  chargeable  upon  the  wife,  namely,  (i)  barrenness;  (2)  las- 
civiousness;  (3)  disregard  of  her  husband's  parents;  (4)  talkativeness; 
(5)  thievish  propensities;  (6)  envious  and  suspicious  temper;  and,  lastly. 


iioo  .  APPENDIX 

(7)  inveterate  infirmity;  yet,  if  any  of  the  three  reasons  against  a 
divorce  should  exist,  namely,  (i)  the  wife's  having  mourned  three  years 
for  her  husband's  parents;  (2)  the  family's  having  become  rich  after 
having  been  poor  previous  to,  and  at  the  time  of,  marriage;  and,  (3) 
the  wife's  having  no  parents  living  to  receive  her  back  again;  in  these 
cases,  none  of  the  seven  aforementioned  causes  will  justify  a  divorce, 
and  the  husband  who  puts  away  his  wife  upon  such  grounds,  shall  suffer 
punishment  two  degrees  less  than  that  last  stated,  and  be  obliged  to 
receive  her  again." 

"If  the  wife  shall  have  broken  the  matrimonial  connexion  by  an 
act  of  adultery,  or  by  any  other  act,  which  by  law  not  only  authorizes 
but  requires  that  the  parties  should  be  separated,  the  husband  shall 
receive  a  punishment  of  80  blows,  if  he  retain  her." 

"When  the  husband  and  wife  do  not  agree,  and  both  parties  are 
desirous  of  separation,  the  law  limiting  the  right  of  divorce  shall  not 
be  enforced  to  prevent  it." 

"If,  upon  the  husband's  refusing  to  consent  to  a  divorce,  the  wife 
quits  her  home  and  absconds,  she  shall  be  punished  with  100  blows, 
and  her  husband  shall  be  allowed  to  sell  her  in  marriage;  if,  during 
such  absence  from  her  home,  she  contracts  marriage  with  another  person, 
she  shall  suffer  death,  by  being  strangled,  after  the  usual  period  of 
confinement."    (Sec.  115.) 

There  are  various  other  provisions  relating  to  marriage,  and  divorce 
and  denouncing  penalties  for  misconduct  of  the  parties.  Book  IV  treats 
of  public  property  and  coinage,  the  collection  of  revenue  and  imposes 
penalties  for  misconduct  in  reference  thereto.  There  are  numerous  pro- 
visions enjoining,  on  all  officers  handling  public  funds,  watchfulness  of 
each  other  and  the  duty  to  report  any  misconduct.  Book  V.  regulates  duties 
and  customs.     Its   first  provision  is   as   follows : 

"Whoever,  not  having  a  license,  engages  in  a  clandestine  traffic  in  salt, 
that  is  to  say,  possesses  any  quantity  however  small  of  this  article  for 
sale,  shall  be  punished  with  100  blows,  and  banished  for  three  years." 
(Sec.  141.) 

An  important  part  of  the  revenues  of  the  state  is  derived  from  the 
salt  monopoly  maintained  by  the  government.  Various  other  articles  of 
merchandise  are  subject  to  taxation.  The  law  against  usury  like  all  other 
laws,  is  enforced  with  the  bamboo ;  the  limit  allowed  as  interest  is  rather 
high  being  3%  per  month,  but  arrears  of  interest  cannot  exceed  the 
principal.  The  payment  of  the  debt  and  interest  is  also  enforced  with 
the  bamboo,  and  a  delay  of  three  months  in  the  payment  of  a  debt 
of  5  leang  or  more  is  punished  with  10  blows  and  10  more  for  each 
additional  delay  of  a  month  up  to  40  blows.  The  failure  to  pay  larger 
debts  may  subject  him  to  more  blows.  A  creditor  who  attempts  to 
collect  his  debt  by  forcibly  seizing  the  property  of  the  debtor  is  liable 


PENAL  CODE  OF  CHINA  iioi 

to  80  blows,  if  he  accepts  the  wife  or  children  of  his  debtor  in  pledge 
for  payment,  he  shall  be  punished  with  100  blows,  if  the  creditor  takes 
the  wife  or  children  and  carries  them  oflf  by  force,  he  is  subject  to  an 
increase  of  two  degrees  of  punishment,  and  if  guilty  of  criminal  conduct 
toward  the  wife  must  suffer  death  by  strangulation.  Trustees  having 
charge'  of  the  goods  or  live  stock  of  another,  who  misappropriate  or 
waste  the  property  are  liable  to  the  bamboo,  and  frauds  are  similarly 
punished.  Book  VII  treats  of  sales  and  markets,  and  provides  for  appoint- 
ments of  commercial  agents  in  every  city,  public  market  and  village 
district,  who  are  required  to  keep  registers  of  the  ships  and  merchants 
who  arrive  and  the  quantity  of  their  goods.  Section  154  contains  a 
provision  which  might  give  ample  employment  to  the  officials,  if  put  in 
force   in   America. 

"When  the  parties  to  the  purchase  and  sale  of  goods  do  not  amicably 
agree  respecting  the  terms,  if  one  of  them  monopolizing,  or  otherwise 
using  undue  influence  in  the  market,  obliges  the  other  to  allow  him  an 
exorbitant  profit;  or  if  artful  speculators  in  trade,  by  entering  into  a 
private  understanding  with  the  commercial  agent,  and  by  employing  other 
unwarrantable  contrivances,  raise  the  price  of  their  own  goods,  although 
of  low  value,  and  depress  the  prices  of  those  of  others,  although  of  high 
value,  in  all  such  cases  the  offending  parties  shall  be  severally  punished 
with  80  blows  each  for  their  misconduct." 

"When  a  trader,  observing  the  nature  of  the  commercial  business 
carrying  on  by  his  neighbor,  contrives  to  suit  or  manage  the  disposal 
or  appreciation  of  his  own  goods  in  such  a  manner,  as  to  derange,  and 
excite  distrust  against  the  proceedings  of  the  other,  and  thereby  draws 
unfairly  a  greater  proportion  of  profit  to  himself  than  usual,  he  shall 
be  punished  with  40  blows." 

"The  exorbitant  profit  derived  from  any  one  of  the  foregoing  unlawful 
practices,  shall,  as  far  as  it  exceeds  a  fair  proportion,  be  esteemed  a 
theft,  and  the  offender  punished  accordingly,  whenever  the  amount  renders 
the  punishment  provided  by  the  law  against  theft  more  severe  than  that 
hereby  established  and  provided.  The  offender  shall  not  however  be 
branded   as    in   the   ordinary   cases    of    theft."      (Sec.    154.) 

The  use  of  false  weights  or  measures  is  punishable  with  60  blows  and 
public  officers  conniving  at  the  use  of  false  weights  are  punishable  with 
from  70  to  100  blows. 

"If  a  private  individual  manufactures  any  article  for  sale,  which  is  not 
as  strong,  durable,  and  genuine,  as  it  is  professed  to  be,  or  if  he  pre- 
pares and  sells  any  silks  or  other  stuffs  of  a  thinner  or  slighter  texture 
and  quality,  narrower,  or  shorter,  than  the  established  or  customary 
standard,  he  shall  be  punished  with  50  blows.     (Sec.  156.) 

Book  I  of  the  4th  division  makes  provision  for  the  observance  of  the 
sacred  rites  and  religious   duties  and   denounces   severe   punishment   for 


mo2  APPENDIX 

failure  to  observe  the  ceremonies  which  are  so  important  a  part  of 
Chinese  customs.  For  the  details  of  the  various  observances,  references 
are  made  to  the  Book  of  Rites.  The  health  of  the  emperor  is  cared  for 
by  subjecting  his  physician  to  from  60  to  100  blows  for  any  mistakes 
in  his  medicine,  and  his  cook  to  like  punishment  for  improper  ingredients 
in  his  food  or  failing  to  test  the  dishes  served  by  tasting. 

"If  either  the  superintending  or  dispensing  officer,  or  the  cook,  in- 
troduces into  His  Majesty's  kitchen  any  unusual  drug,  or  article  of  food» 
he  shall  be  punished  with  100  blows,  and  compelled  to  swallow  the  same." 
(Sec.  163.) 

"If  a  son  on  receiving  information  of  the  death  of  his  father  or 
mother,  or  a  wife,  receiving  information  of  the  death  of  her  husband, 
suppress  such  intelligence,  and  omits  to  go  into  lawful  mourning  for  the 
deceased,  such  neglect  shall  be  punished  with  60  blows,  and  one  year's 
banishment.  If  a  son  or  wife  enters  into  mourning  in  a  lawful  manner, 
but  previous  to  the  expiration  of  the  term,  discards  the  mourning  habit, 
and  forgetful  of  the  loss  sustained,  plays  upon  musical  instruments  and 
partakes  of  festivities,  the  punishment  shall  amount  for  such  offense  to 
80  blows." 

"Whoever  on  receiving  information  of  the  death  of  any  other  relation 
in  the  first  degree  than  the  above-mentioned,  suppresses  the  notice  of  it, 
and  omits  to  mourn,  shall  be  punished  with  80  blows;  if  previous  to  the 
expiration  of  the  legal  period  of  mourning  for  such  relation,  any  person 
casts  away  the  mourning  habit,  and  resumes  his  wonted  amusements^ 
he  shall  be  punished  with  60  blows." 

"When  any  officer  or  other  person  in  the  employ  of  government,  has 
received  intelligence  of  the  death  of  his  father  or  mother,  in  consequence 
of  which  intelligence  he  is  bound  to  retire  from  office  during  the  period 
of  mourning;  if,  in  order  to  avoid  such  retirement,  he  falsely  represents 
the  deceased  to  have  been  his  grand-father,  grand-mother,  uncle,  aunt, 
or  cousin,  he  shall  suffer  the  punishment  of  100  blows,  be  deposed  from 
office,  and  rendered  incapable  of  again  entering  into  the  public  service."^ 

"On  the  other  hand,  if  any  officer  of  government  falsely  alleges  the 
pretext  of  mourning,  while  his  parents  are  still  living,  or  after  they  are 
so  long  dead  that  the  period  of  mourning  had  expired,  he  shall  be  liable 
to  the  same  punishment  as  in  the  opposite  case  last  mentioned." 

"If  either  of  the  foregoing  misrepresentations  should  be  designed  to 
effect  any  criminal  purpose,  the  offender  shall  be  liable  to  any  aggrava- 
tion of  the  punishment  which  may  be  comformable  to  the  law,  applicable 
to  the  case  under  such  circumstances." 

"If,  previous  to  the  expiration  of  the  lawful  term  of  absence  in  con- 
sequence of  the  loss  of  a  parent,  any  officer  or  other  person  in  the  employ 
of  government,  returns  to,  and  resumes  his  office  or  command,  he  shall 
be  deprived  thereof,  and  punished  with  80  blows.     If  the  superior  officers 


PENAL  CODE  OF  CHINA  1103 

of  the  same  department  are  aware  that  the  return  of  the  mourner  is 
premature,  and  nevertheless  permit  him  to  resume  his  functions,  they 
shall  be  equally  punishable;  but  if  not  aware  of  the  fact,  they  shall  not 
be    responsible." 

"Those  officers  of  government,  who  hold  remote  and  important  sta- 
tions and  commands,  shall  not  be  bound  by  the  above  regulations  on 
the  arrival  of  the  intelligence  of  the  death  of  their  parents,  as  the 
line  of  conduct  they  are  to  pursue  on  such  occasions  will  always  be 
determined  by  express  orders  from  the  Emperor."    (Sec.  179.) 

"If  any  person,  in  order  to  hold  an  office  under  government,  absents 
himself  from  a  father,  mother,  paternal  grandfather,  or  grandmother, 
who  is  either  upwards  of  80  years  of  age,  or  totally  disabled  by  any 
infirmity,  while  such  near  relation  has  no  other  male  offspring  above 
sixteen  years  of  age,  to  perform  the  duties  of  filial  piety;  or  if  on  the 
contrary,  any  person  being  in  office,  solicits  permission  to  retire  to  his 
family,  upon  a  falsely  alleged  pretext  of  the  age  or  infirmity  of  any 
such  near  relation  as  aforesaid,  the  offender,  in  either  of  these  opposite 
cases,  shall  suffer  a  punishment  of  80  blows." 

"Whoever  plays  on  musical  instruments,  or  partakes  of  feasts  at  home 
or  abroad,  while  her  husband,  or  his  or  her  father,  mother,  paternal 
grandfather  or  grandmother,  are  in  confinement  upon  a  charge  of  a 
capital  offense,  shall  also  be  liable  to  the  aforesaid  punishment."    (Sec.  180.) 

Funerals  are  strictly  regulated,  and  failure  to  observe  the  established 
rites    is    punishable    with    from    80   to    100   blows. 

The  5th  division  contains  the  military  laws  for  the  government  of  the 
imperial  palace,  the  guards  and  the  army.  The  regulations  are  quite 
minute  and  voluminous  and  not  deemed  of  especial  interest.  The  size 
of  the  empire  of  China  with  its  single  head  renders  rapid  communication 
between  its  remote  parts  necessary.  The  Chinese  were  far  in  advance  of 
the  Europeans  in  establishing  a  system  of  transmitting  dispatches,  and 
it  was  only  with  the  advent  of  railroads  and  telegraphs  that  the  postal 
system  of  the  West  became  superior  to  that  of  China.  It  is  provided  in 
Section  238: 

"The  military  post-soldiers  charged  with  the  transmission  of  government 
orders  and  dispatches,  must  proceed  on  their  route  at  the  rate  of  300  lee 
in  a  day  and  a  night:  If  through  dilatoriness  they  exceed  the  time  to 
the  extent  of  three  quarters  of  an  hour  (an  hour  and  a  half  European 
computation),  they  shall  be  punished  with  20  blows;  and  the  punishment 
shall  increase  by  a  progressive  ratio  of  one  degree  for  each  additional 
delay  of  three-quarters  of  an  hour,  until  it  amounts  to  50  blows." 

"Immediately  that  the  dispatches  of  government  arrive  at  any  military 
post  or  station,  the  post-master  shall  not  fail  to  forward  them,  whether 
many  or  few,  under  the  charge  of  the  soldiers  who  are  placed  under  his 
jurisdiction    for  that  purpose." 


ri04  APPENDIX 

Not  only  are  provisions  made  for  swift  messengers,  but  post-houses  are 
stationed  at  convenient  distances  along  all  the  roads  and  the  post  master 
general  of  the  district  is  required  to  keep  them  in  repair  under  penalty 
of  50  blows.  Severe  penalties  are  denounced  against  messengers  failing 
in  their  duty  and  against  any  one  interfering  with  them  in  making  their 
journeys. 

The  6th  subdivision  is  devoted  to  criminal  laws.  High  treason  is  thus 
defined  and  punished : 

"High  treason,  is  either  treason  against  the  state,  by  an  attempt  to 
subvert  the  established  government;  or  treason  against  the  Sovereign, 
"by  an  attempt  to  destroy  the  palace  in  which  he  resides,  the  temple  in 
which  his  family  is  worshipped,  or  the  tombs  in  which  the  remains  of 
his  ancestors  are  deposited." 

"All  persons  convicted  of  having  been  principals  or  accessaries  to  the 
actual  or  designed  commission  of  this  heinous  crime,  shall  suffer  death 
by  a  slow  and  painful  execution." 

"All  the  male  relations  in  the  first  degree,  at  or  above  the  age  of 
sixteen,  of  persons  convicted  as  aforesaid;  namely,  the  father,  grand- 
father, son,  gradsons,  paternal  uncles,  and  their  sons  respectively,  shall, 
without  any  regard  to  the  place  of  residence,  or  to  the  natural  or 
acquired  infirmities  of  particular  individuals,  be  indiscriminately  beheaded." 

"All  the  other  male  relations  at  or  above  the  age  of  sixteen,  however 
distant  their  relationship,  and  whether  by  blood  or  by  marriage,  shall 
likewise  suffer  death,  by  being  beheaded,  if  they  were  living  under  the 
same  roof  with  the  treasonable  offender,  at  the  time  the  offence  was 
committed." 

"The  male  relations  in  the  first  degree,  under  the  age  of  sixteen  and 
the  female  relations  in  the  first  degree,  of  all  ages,  shall  be  distributed 
as  slaves  to  the  great  officers  of  state."    (Sec.  254.) 

"All  persons  convicted  of  writing  and  editing  books  of  sorcery  and 
magic,  or  of  employing  spells  and  incantations,  in  order  to  agitate  and 
influence  the  minds  of  the  people,  shall  be  beheaded,  after  remaining  in 
prison  the  usual  period.  If  the  influence  of  such  acts  shall  not  have 
extended  beyond  a  few  persons,  the  criminal  shall  be  banished  perpetually 
to  the  distance  of  3000  lee;  and  generally,  the  punishment  shall  be  pro- 
portionate to  the  nature  of  the  case,  and  therefore  more  or  less  severe 
according  to  circumstances." 

"All  persons  who  are  guilty  of  retaining  in  their  possession,  and  con- 
cealing from  the  magistrates,  any  books  of  the  above  description,  shall 
be  punished  with  100  blows,  and  banished  for  three  years."     (Sec.  256.) 

"All  persons  guilty  of  stealing  the  consecrated  oblations  offered  up  by 
the  Emperor  to  the  spirits  of  Heaven  and  Earth,  or  any  of  the  sacred 
utensils,  cloths,  meat-offerings,  and  precious  stones  used  on  such  occasions, 
shall  whether  principals  or  accessaries  to  the  offense,  whether  previously 


PENAL  CODE  OF  CHINA  1105 

entrusted  or  not  with  the  charge  of  the  said  articles,  in  all  cases,  be 
beheaded."     (Sec.  257.) 

"All  persons  guilty  of  having  been  principals  or  accessaries  to  the 
crime  of  stealing  an  Imperial  edict,  after  it  has  received  the  impression 
of  the  great  Imperial  seal,  shall  be  beheaded."    (Sec.  258.) 

"All  persons  concerned  as  principals  or  accessaries  in  the  offense  of 
forcibly  rescuing,  or  attempting  to  rescue  any  lawful  prisoner,  shall  suffer 
death  by  being  beheaded,  after  confinement  during  the  usual  period." 
(Sec.  267.) 

Theft  is  punishable  by  a  graduated  scale  ranging  from  60  blows  for 
stealing  one  ounce  of  silver  to  death  by  strangulation  for  taking  120- 
ounces.  Larceny  of  property  is  punishable  according  to  the  same  scale 
of  value.  Where  the  theft  is  from  a  relation  by  blood  or  marriage  in 
the  first  degree,  it  is  reduced  five  degrees,  from  those  in  the  second 
degree,  four  degrees,  in  the  third,  three  and  in  the  fourth  two  and 
from  other  relations  one  degree  less  than  if  from  a  stranger. 

"All  persons  guilty  of  digging  in,  and  breaking  up  another  man's  burying- 
ground,  until  at  length  one  of  the  coffins  which  had  been  deposited  therein, 
is  laid  bare  and  becomes  visible,  shall  be  punished  with  100  blows,  and 
perpetual  banishment  to  the  distance  of  3000  lee/^ 

"Any  person  who,  after  having  been  guilty  as  aforesaid,  proceeds  to 
open  the  coffin,  and  uncover  the  corpse  laid  therein,  shall  be  punished 
with  death,  by  being  strangled,  after  undergoing  the  usual  confinement."" 
(Sec.  276.) 

This  section  is  long  and  contains  many  provisions  for  punishing  the 
desecration  of  burying  grounds.  The  punishment  of  robbery  is  gen- 
erally capital  but  there  are  various  grades  of  this  offense  to  which  less 
penalties   are   assigned. 

The  distinction  between  principal  and  accessary  of  this  code  makes 
the  contriver  of  the  crime  principal  and  the  others  accessaries.  Actual 
participation  in  the  perpetration  of  the  crime  is  not  made  the  basis  of 
distinction  between  them.  Attempts  and  designs  to  commit  crime  though 
not  carried  into  execution  are  also  punishable  in  a  less  degree.  Homicide 
in  various  degrees  is  defined  and  punished  with  death. 

"Any  person  convicted  of  a  design  to  kill  his  or  her  father  or  mother, 
grandfather  or  grandmother,  whether  by  the  father's  or  mother's 
side ;  and  any  woman  convicted  of  a  design  to  kill  her  husband,  husband's 
father  or  mother,  grandfather  or  grandmother,  shall,  whether  a  blow 
is  or  is  not  struck  in  consequence,  suffer  death  by  being  beheaded.  In 
punishing  this  criminal  design,  no  distinction  shall  be  made  between 
principals  and  accessaries,  except  as  far  as  regards  their  respective 
relationships  to  the  person  against  whose  life  the  design  is  entertained. 
If  the  murder  is  committed,  all  the  parties  concerned  therein,  and 
related   to   the   deceased   as    above   mentioned,    shall    suffer   death    by   a 


£iio6  APPENDIX 

slow  and  painful  execution.  If  the  criminal  should  die  in  prison,  an 
execution  similar  in  mode  shall  take  place  on  his  body.  The  accessaries 
more  distantly  related,  shall  be  punished  according  to  the  law  particularly 
applicable  to  the  cases  of  persons  so  related;  and  those  accessaries  who 
are  not  related  at  all,  shall  be  punished  as  similar  offenders  would  be 
in  ordinary  cases."     (Sec.  284.) 

An  adulterer  and  his  paramour,  caught  in  the  act,  may  be  immediately 
killed  by  the  husband,  but  not  afterward. 

"All  persons  rearing  venomous  animals,  or  preparing  drugs  of  a 
poisonous  nature,  for  the  purpose  of  applying  the  same  to  the  destruc- 
tion of  men,  or  instructing  others  so  to  do,  shall  be  beheaded,  although 
no  person  is  actually  killed  by  means  of  such  drugs  or  animals.  The 
property  of  the  person  guilty  of  this  crime,  shall  be  forfeited  to  govern- 
ment, and  his  wives  and  children,  as  well  as  the  other  inmates  of  his 
house,  although  innocent  of  the  crime,  shall  be  perpetually  banished 
to  the  distance  of  2000  lee."     (Sec.  289.) 

Killing  by  accident  or  mistake  is  punished  less  severely  according  to 
circumstances, 

"If  a  wife  strikes  and  abuses  her  husband's  father  or  mother,  grand- 
father, or  grandmother,  and  the  husband,  instead  of  accusing  her 
before  a  magistrate,  kills  her  in  consequence  of  such  offense,  he  shall 
be   punished   with   100  blows." 

"If  a  wife,  having  been  struck  and  abused  by  her  husband,  in  con- 
sequence thereof  kills  herself,  the  husband  shall  not  be  responsible. 
When  a  wife,  after  her  husband's  father  and  mother,  grandfather  and 
grandmother  are  dead,  is  guilty  of  disrespect  to  their  memory  only, 
or  is  charged  with  some  other  fault  not  worthy  of  death  according  to  the 
laws,  if  thereupon  the  husband  kills  her,  he  shall  suffer  the  punishment 
of  death,  by  being  strangled,  after  the  usual  period  of  confinement." 
(Sec.   293.) 

"Whoever  is  guilty  of  killing  his  son,  his  grandson,  or  his  slave,  and 
attributing  the  crime  to  another  person,  shall  be  punished  with  70  blows, 
and  one  and  one  half  year's  banishment." 

"Any  person  attributing,  previous  to  burial,  the  death  of  his  father, 
mother,  grandfather  or  grandmother;  and  any  slave  in  like  manner, 
attributing  the  death  of  his  inaster  to  a  person  innocent  thereof,  shall, 
if  aware  of  the  falsehood  of  the  imputation  be  punished  with  100  blows, 
and   three   years   banishment."      (Sec.   294.) 

"When  unskilful  practitioners  of  medicine  or  surgery,  administer 
drugs,  or  perform  operations  with  the  puncturing  needle,  contrary  to 
the  established  rules  and  practice,  and  thereby  kill  the  patient,  the 
magistrates  shall  call  in  other  practitioners  to  examine  the  nature  of 
the  medicine,  or  of  the  wound,  as  the  case  may  be,  which  proved 
mortal;   and  if  it  shall  appear  upon  the  whole  to  have  been  simply  an 


PENAL  CODE  OF  CHINA  1107 

error,  without  any  design  to  injure  the  patient,  the  practitioner  of 
medicine  shall  be  allowed  to  redeem  himself  from  the  punishment  of 
homicide,  as  in  cases  purely  accidental,  but  shall  be  obliged  to  quit  his 
profession  forever."     (Sec.  297.) 

"If  it  shall  appear  that  a  medical  practioner  intentionally  deviates 
from  the  established  rules  and  practice,  and  while  pretending  to  remove 
the  disease  of  his  patient,  aggravates  the  complaint,  in  order  to  extort 
more  money  for  its  cure,  the  money  so  extorted  shall  be  considered  to 
have  been  stolen,  and  punishment  inflicted  accordingly,  in  proportion 
to  the  amount." 

"If  the  patient  dies,  the  medical  practitioner  who  is  convicted  of 
designedly  employing  improper  medicines,  or  otherwise  contriving  to 
injure  his  patient,  shall  suffer  death  by  being  beheaded,  after  the  usual 
period  of  confinement." 

Section  302  contains  minute  provisions  for  the  punishment  of  assaults 
of  many  kinds,  the  number  of  blows  to  be  inflicted  depending  on  the 
nature  of  the  injury  or  indignity  offered.  Quarreling,  fighting  and 
wounding  another  within  the  Imperial  Palace  is  punished  more  severely 
than  elsewhere.  Striking  or  wounding  a  person  of  the  Imperial  blood 
is  also  an  aggravated  offense  but  not  punishable  capitally  unless  the 
injury  amounts  to  incurable  infirmity.  Assaulting  an  officer  of  the 
government  is  also  an  aggravated  offense  but  not  made  a  capital  crime. 
Apprentices  striking  their  masters  are  liable  to  two  degrees  heavier 
punishment.  A  slave  striking  a  free  person  is  punished  one  degree  more 
severely,  and  a  free  person  striking  a  slave  one  degree  less  severely,  but 
killing  a  slave  is  a  capital  offense.  A  slave  designedly  striking  his 
master  is  punishable  with  death.  If  the  master  intentionally  kills  his 
slave  he  is  liable  to  60  blows  and  one  year's  banishment,  and  if  he  de- 
signedly kills  a  hired  servant  he  shall  be  strangled. 

"Any  person  who  is  guilty  of  striking  his  father,  mother,  paternal 
grandfather  or  grandmother;  and  any  wife  who  is  guilty  of  striking  her 
husband's  father,  mother,  paternal  grandfather  or  grandmother,  shall 
suffer  death  by  being  beheaded.  Any  person  who  is  guilty  of  killing 
such  a  near  relation,  shall  suffer  death  by  a  slow  and  painful  execution. 
"Any  person  who  kills  so  near  a  relation,  purely  by  accident,  shall 
still  be  punished  wth  100  blows  and  perpetual  banishment  to  the  dis- 
tance of  3000  Ice.  In  the  case  of  wounding  purely  by  accident,  the 
person  convicted  thereof,  shall  be  punished  with  100  blows  and  three 
years  banishment;  in  these  cases,  moreover,  the  parties  shall  not  be 
permitted  to  redeem  themselves  from  punishment  by  the  payment  of  a 
fine,  as  usual  in  the  ordinary  cases  of  accident." 

"If  a  father,  mother,  paternal  grandfather  or  grandmother,  chastises 
a  disobedient  child  or  grandchild  in  a  severe  and  uncustomary  manner, 
so  that  he  or   she   dies,  the  party  so  offending  shall  be   punished  with 


iio8  APPENDIX 

loo  blows.  When  any  of  the  aforesaid  relations  are  guilty  of  killing 
such  disobedient  child  or  grandchild  designedly,  the  punishment  shall 
be  extended  to  60  blows  and  one  year's  banishment."     (Sec.  319.) 

"Whoever,  upon  perceiving  a  father,  mother,  paternal  grandfather  or 
grandmother,  to  be  struck  by  any  person,  immediately  interposes  in 
defense  of  such  near  relation,  and  strikes  the  aggressor,  shall,  unless 
striking  such  a  blow  as  to  produce  a  cutting  wound,  be  entirely  justified 
and  free  from  responsibility;  and  even  if  the  wound  inflicted  by  the 
individual  who  interposes  under  such  circumstances  is  severe,  he  shall 
be  punished  less  severely  by  three  degrees  than  in  ordinary  cases;  ex- 
cepting only  those  instances  in  which  the  blows  struck  prove  mortal, 
when  the  punishment  shall  be  the  same  as  in  ordinary  cases.  To  entitle 
however,  any  person  to  the  benefit  of  this  law,  it  must  always  be 
strictly  proved  that  the  blows  were  inflicted  on  the  impulse  of  the 
moment,  and  actually  in  defense  of  such  aforesaid  relation."     (Sec.  323.) 

"In  ordinary  cases,  all  persons  guilty  of  employing  abusive  language 
shall  be  liable  to  a  punishment  of  10  blows;  and  persons  abusing  each 
other,   shall   be  punishable  with    10  blows   respectively."      (Sec.  324.) 

Abusive  language  to  officers  is  punished  more  severely, 

"All  the  subjects  of  the  empire,  whether  soldiers  or  citizens,  who 
have  complaints  and  informations  to  lay  before  the  officers  of  govern- 
ment, shall  address  themselves  in  the  first  instance,  to  the  lowest  tribunal 
of  justice  within  the  district  to  which  they  belong,  from  which  the 
cognizance  of  the  affair  may  be  transferred  to  the  superior  tribunals 
in  regular  gradation.  Any  individual  who  instead  of  addressing  him- 
self to  the  proper  magistrate  within  his  district,  proceeds  at  once  to 
lay  his  complaint  and  information  before  a  superior  tribunal,  shall  be 
punished  with  50  blows,  although  his  complaint  should  be  just,  and  his 
information  correct." 

"It  is  however  lawful  to  appeal  to  a  superior  magistrate,  when  the  in- 
ferior officer  of  justice  refuses  to  receive  the  information  and  complaint, 
or  decides  thereon  unjustly;  but  not  otherwise." 

"Whoever,  in  order  to  present  an  information,  detains  an  officer  of 
justice  in  his  public  progress  and  whoever,  for  the  same  purpose,  sum- 
mons any  officer  of  justice  to  his  tribunal  by  beat  of  drum,  shall  be  pun- 
ished with  100  blows;  if  his  information  be  false  and  complaint  ground- 
less; and  if  he  should  be  likewise  guilty  of  the  crime  of  a  false  and 
malicious  accusation  against  any  person,  he  shall  be  punished  as  much 
more  severely  as  the  law  applicable  to  such  cases  of  criminality  may 
authorize." 

"Nevertheless,  if  his  cause  is  found  to  be  a  just  one,  the  irregularity 
of  his  proceedings  shall  be  pardoned."     (Sec.  332.) 

"Any  person  who  addresses  and  presents  an  information  and  complaint 
to  an  officer  of  government,  containing  direct  criminal  charges  against 
a  particular  individual,  without  having  inserted  therein  his    (the   infor- 


PENAL  CODE  OF  CHINA  1109 

mant's)  proper  name  and  family  name,  shall,  although  the  charges  should 
prove  true,  be  punished  with  death,  by  being  strangled  at  the  usual 
period."     (Sec.  333.) 

"When  an  information  concerning  a  charge  of  high  treason  or  re- 
bellion is  regularly  presented  to  an  officer  of  government,  if  he  does  not 
immediately  receive  and  act  thereon,  that  is  to  say,  take  measures  for 
seizing  culprits,  and  preventing  the  progress  of  such  disorders,  he  shall 
be  liable  to  a  punishment  of  100  blows  and  three  years  banishment,  al- 
though no  evil  consequences  should  ensue  fron\  his  neglect;  but  if 
through  his  inattention,  considerable  numbers  are  suffered  to  assemble 
tumultuously,  attacking  forfeited  stations,  ravaging  the  country,  and 
distressing  the  inhabitants,  such  officer  of  government  shall  suffer  death, 
by  being  beheaded  at  the  usual  period."      (Sec.  334.) 

"Whenever  any  information  is  laid  before  a  magistrate,  who  is  related 
by  blood  or  by  marriage  to  the  accuser  or  to  the  accused,  who  was 
educated  by,  or  had  ever  served  under  either  party,  or  who,  lastly,  had 
been  habitually  the  enemy  or  public  adversary  of  either;  in  all  such 
cases  the  magistrate  must  decline  to  act  thereon,  and  shall  therefore 
transfer  it  forthwith  to  another  jurisdiction." 

"Any  magistrate  who  takes  cognizance  of  a  case  under  such  circum- 
stances, shall  be  liable  to  a  punishment  of  40  blows;  although  he  should 
have  pronounced  a  just  and  impartial  sentence: — otherwise,  he  will  be 
liab)e  to  the  severe  punishment  attending  an  intentional  deviation  from 
justice."      (Sec.    335.) 

"Whoever  lays  before  a  magistrate  a  false  and  malicious  information, 
in  which  some  person  is  expressly  charged  with  a  crime  punishable 
with  any  number  of  blows,  not  exceeding  50,  shall  suffer  a  punishment 
two  degrees  more  severe  than  that  which  the  accused  would  have 
merited  had  the  accusation  been  true.  If  the  crime  falsely  alleged 
was  punishable  with  more  than  50  blows,  or  with  temporary  or  per- 
petual banishment  the  punishment  of  the  accuser  shall  be  three  degrees 
more  severe  than  that  to  which  the  accused  is  rendered  liable;  but  shall 
not,  in  these,  or  in  any  of  the  preceding  cases,  be  so  increased  as  to 
become  capital."     (Sec.  336.) 

This  is  a  long  section  with  many  modifying  clauses  and  seems  to 
indicate  that  malicious  prosecutions  are  very  numerous. 

"In  all  cases  of  exciting  and  disposing  others  to  inform  and  prosecute, 
the  person  who  draws  up  the  information  for  the  prosecutor,  and  by  any 
aggravation  or  extenuation  deviates  from  the  truth,  shall  be  liable  to 
the  same  punishment  as  the  false  accuser;  except  in  a  capital  case, 
when  his  punishment  shall  be  reduced  one  degree.  In  the  case  of  hiring 
any  person  to  present  and  prosecute  a  false  accusation,  the  person  hired 
shall  be  liable  to  the  same  punishment  as  the  false  accuser,  under  the 
same  mitigation  in  capital  cases,  as  in  the  preceding  instances."    (Sec.  340.) 


mio  APPENDIX 

"All  civil  and  military  officers,  and  also  all  persons  who  have  em- 
ployments without  rank  under  government,  shall,  when  convicted  of 
accepting  a  bribe  for  a  lawful  or  for  an  unlawful  purpose,  be  punished 
in  proportion  to  the  amount  thereof,  as  stated  in  the  subjoined  table; 
and  moreover  be  deprived  of  their  rank  and  offices,  if  having  any;  and 
if  not,  of  their  actual  employments  whatever  they  may  be.  Those 
who  are  not  in  the  receipt  of  any  salary,  or  of  a  salary  not  amounting  to 
one  stone  of  rice  per  month  in  value,  shall  be  punished  less  severely, 
in  every  case,  by  one. degree."     (Sec.  344.) 

There  are  many  sections  relating  to  bribery  of  and  extortion  by  public 
officers  against  which  punishments  are  denounced.  Forgeries  and  frauds 
of  many  kinds  are  defined  and  their  punishments  declared,  ranging  all  the 
way  from  minor  punishment  with  the  bamboo  to  beheading  for  forging 
an   imperial  edict. 

"Criminal  intercourse  by  mutual  consent  with  an  unmarried  woman, 
shall  be  punished  with  70  blows ;  if  with  a  married  woman,  the  punishment 
shall  be  80  blows." 

"Deliberate  intrigue  with  a  married  or  unmarried  woman  shall  be 
punished  with   100  blows." 

"Violation  of  a  married  or  unmarried  woman;  that  is  to  say,  a  rape, 
shall    be    punished    with    death    by    strangulation." 

"An  assault  with  an  intent  to  commit  a  rape,  shall  be  punished  with 
100  blows,  and  perpetual  banishment  to  the  distance  of  3000  lee.  In 
these  cases,  however,  the  conviction  of  the  offender  must  be  founded 
on  decisive  evidence  of  force  having  really  been  employed." 

"Criminal  intercourse  with  a  female  under  twelve  years  of  age,  shall 
be  punished  as  a  rape  in  all  cases."     (Sec.  346.) 

"Civil  or  military  officers  of  government,  and  the  sons  of  those  who 
possess  hereditary  rank,  when  found  guilty  of  frequenting  the  company 
of  prostitutes  and  actresses,  shall  be  punished  with  60  blows." 

"All  persons  who  are  guilty  of  negotiating  such  criminal  meetings  and 
intercourse,  shall  suffer  the  punishment  next  in  degree."     (Sec.  374.) 

"In  all  civil  and  military  jurisdictions,  where  there  are  private  soldiers 
attached  to  the  government  stations,  or  laiborers  employed  in  the 
public  works;  whenever  such  persons  are  suffering  under  any  disease 
or  infirmity,  the  officer  in  command  shall  duly  communicate  the  circum- 
stance to  the  officer  whose  province  it  is  to  furnish  medicines  and  medical 
aid  to  the  sick;  if  he  fails  to  make  such  communication,  or  in  the 
event  of  such  communication  having  been  made,  if  the  proper  officer 
does  not  provide  sufficient  medical  assistance,  the  individual  neglecting 
his  duty  shall  be  liable  to  the  punishment  of  40  blows;  and  this  punish- 
ment shall  be  increased  to  80  blows,  whenever  the  sick  person  dies  in 
consequence  of  such  neglect."     (Sec.  yjl ?) 

"All   the   accessaries^    as    well   as    principals,   to   the   crime    of   wilfully 


PENAL  CODE  OF  CHINA  iiii 

and  maliciously  setting  on  fire  any  residence,  either  of  an  officer  of  gov- 
ernment, or  of  any  private  individual,  their  own  only  excepted,  or  to 
the  crime  of,  in  the  same  manner  setting  fire  to  any  government  or 
private  building,  treasury,  or  store-house,  in  which  public  or  private 
property  of  any  kind  is  stored  and  deposited,  shall  be  punished  with 
death,   by   being  beheaded  at  the   usual  period."      (Sec.   383.) 

"All  persons  who,  after  having  entered  into  the  service  of  government 
as  constables,  bailiffs,  theif-takers,  or  in  any  capacity  of  that  description, 
at  any  time  allege  pretexts  of  excusing  themselves  from  the  duty  of 
pursuing  and  seizing  offenders;  or  do  not  actually  pursue  and  seize 
those  offenders,  with  the  place  of  whose  retreat  they  are  acquainted, 
shall  in  each  case,  be  liable  to  the  punishment  next  in  degree  to  that 
which  is  due  to  the  offender,  or  to  the  most  guilty  of  the  offenders,  if  there 
should  be  more  than  one,  whom  their  neglect  had  occasioned  to  remain 
at  large."     (Sec.  387.) 

Many  penalties  are  denounced  against  officials  for  neglect  or  misconduct 
with  reference  to  the  arrest,  detention  and  punishment  of  offenders. 

"Whenever  the  individuals  committed  to  prison,  have  no  families  or 
relations  by  whom  they  may  be  supplied  with  necessaries,  the  superior 
authorities  shall  be  addressed  for  leave  to  supply  them  with  clothes  and 
provisions,  and,  whenever  they  are  sick,  with  medicines  and  medical 
assistance ;  leave  shall  also  be  asked  in  favor  of  those  who  are  net 
charged  with  capital  crimes,  that  they  may,  when  sick,  be  released  from 
their  fetters  and  handcuffs;  and  in  favor  of  those  who  are  only  liable 
to  a  punishment  of  50  blows  or  less,  that  they  may  when  sick  be  let 
out  of  prison,  upon  sufficient  security  being  given  for  their  return ;  and 
lastly,  in  favor  of  those  who  are  dangerously  sick  or  incurably  infirm, 
that  their  families  may  have  free  access  to  them."     (Sec.  401.) 

"It  shall  not,  in  any  tribunal  of  government,  be  permitted  to  put  the 
question  by  torture  to  those  who  belong  to  any  of  the  eight  privileged 
classes,  in  consideration  of  the  respect  due  to  their  character;  to  those 
who  have  attained  their  seventieth  year,  in  consideration  of  their  ad- 
vanced age;  to  those  who  have  not  exceeded  their  fifteenth  year,  out  of 
indulgence  to  their  tender  youth  and  lastly,  to  those  who  labour  under 
any  permanent  disease  or  infirmity,  out  of  commiseration  for  their  situa- 
tion and  sufferings.  In  all  such  cases,  the  offenses  of  the  parties  accused 
shall  be  determined  on  the  evidence  of  facts  and  witnesses  alone;  and 
all  officers  of  government  who  disregard  the  restrictions  of  this  law, 
shall  be  punished  either  according  to  the  law  against  a  designed,  or  the 
law  against  a  careless  aggravation  of  the  punishment  of  an  offender, 
according  as  the  said  misconduct  on  the  part  of  the  magistrate  is  attribut- 
able to  design,  or  to  inattention." 

"Moreover,  in  all  cases  in  which  the  circumstances  or  connexion 
between  the  parties  produce  a  legal  incapacity,  or  in  the  case  of  individuals 


rii2  APPENDIX 

arrived  at  eighty,  or  under  ten  years  of  age,  or  entirely  and  permanently 
infirm,  it  shall  not  be  permitted  even  to  require  or  to  receive  their  testi- 
mony; every  breach  of  this  law  in  any  tribunal  of  government,  shall 
be  punished  accordingly  with  50  blows,  and  the  clerk  of  the  court 
esteemed,  as  in  all  other  cases  of  misconduct  in  a  joint  and  official 
capacity,  the  principal  offender."     (Sec.  404.) 

A  very  curious  table  is  contained  in  Section  CCCCIX  giving  the 
punishments  to  Ibe  inflicted  on  the  clerk  of  the  court,  the  deputy 
or  executive  officer,  the  assessors  and  the  presiding  magistrate  for 
wrong  judgments,  divided  into  classes,  the  first  where  a  wrong  judgment 
is  made  by  design  and  the  second  through  error  of  judgment.  The 
clerk  of  the  court  is  punished  most  severely  and  the  presiding  magistrate 
least. 

"Female  offenders  shall  not  be  committed  to  prison  except  in  capital 
cases,   or   cases   of   adultery." 

"In  all  other  cases,  they  shall,  if  married,  remain  in  the  charge  and 
custody  of  their  husbands,  and  if  single,  in  that  of  their  relations, 
or  next  neighbours,  who  shall,  upon  every  such  occasion,  be  held  responsible 
for  their  appearance  at  the  tribunal  of  justice,  when  required." 

"All  magistrates  committing  women  to  prison  contrary  to  the  pro- 
visions of  this  law,  shall  suffer  the  punishment  of  40  blows." 

"If  any  female  who  is  condemned  to  corporal  punishment,  or  to  the 
question  by  torture,  is  discovered  to  be  with  child,  she  shall  be  sent 
back  to  the  custody  of  the  responsible  persons  aforesaid,  and  not  be 
subjected  to  punishment  or  to  the  question  by  torture,  until  100  days 
complete    are   elapsed    from   the   period   of   her    delivery."      (Sec.   420.) 

"All  magistrates  who  authorize  the  execution  of  any  capitally  con- 
victed offender,  without  waiting  for  the  Imperial  rescript,  containing 
the  ratification  of  the  sentence  grounded  upon  their  final  report  of  the 
case,  shall  be  punished,  at  the  least,  with  80  blows." 

"After  the  warrant  of  execution  is  received,  a  further  delay  shall  be 
allowed,  of  three  days,  during  which  if  the  criminal  is  executed,  or 
after  which,  if  he  is  not  immediately  executed,  the  responsible  officer 
of  government  shall  be  liable  to  the  punishment  of  60  blows.  Nevertheless, 
in  the  case  of  robbers,  and  those  who  are  sentenced  to  be  executed  for 
any  of  the  ten  treasonable  offenses,  a  breach  of  this  law  shall  only  be 
punished  with  40  blows."     (Sec.  421.) 

"If  after  a  sentence  is  pronounced  against  an  offender  in  a  tribunal 
of  justice,  he  is  permitted  to  redeem  himself  from  banishment  or  corporal 
punishment,  in  a  case  that  is  not  by  law  redeemable;  or  if  he  is  banished 
or  corporally  punished,  in  a  case  that  is  redeemable,  the  punishment 
of  such  false  construction  of  the  laws,  shall  be  only  one  degree  less 
severe  than  that  of  an  entirely  unjust  and  groundless  sentence,  under 
similar  circumstances." 


PENAL  CODE  OE  CHINA  1113 

"If  an  offender  who,  conformably  to  the  laws,  ought  to  be  strangled, 
is  beheaded;  or  beheaded,  when  he  ought  to  have  been  strangled;  such 
deviation,  if  wilful,  shall  be  punished  with  60  blows;  if  committed  by 
mistake,  with  30  blows."     (Sec.  422.) 

"A  determinate  quantity  of  silks  and  stuffs,  and  of  military  weapons, 
shall  be  annually  manufactured  and  prepared  for  the  public  service, 
in  each  subdivision  of  the  department  of  public  works;  and  if  any  of 
the  workmen  fail  to  provide  in  due  season  their  assigned  proportion, 
they  shall  be  liable,  at  the  least,  to  a  punishment  of  20  blows;  and 
the  punishment  shall  be  increased  as  far  as  50  blows,  at  the  rate  of 
one  degree  for  every  additional  tenth  deficient:  the  punishment  of  the 
superintending  officer  of  the  work,  shall  be  one  degree  less  severe,  and 
that  of  the  officer  superintending  the  supplies,  two  degrees  less  severe, 
than  that  of  the  workman." 

"On  the  other  hand,  if  the  raw  materials  are  not  delivered  to  the 
workmen  in  sufficient  quantities,  and  at  proper  times,  the  superintending 
officer  of  the  manufactory  shall  suffer  a  punishment  of  40  blows,  and 
the  superintendent  of  supplies  a  punishment  of  30  blows;  the  workmen 
shall,  in  such  cases,  be  excused."     (Sec.  430,) 

"When  any  of  the  government  residences,  granaries,  treasuries,  manu- 
factories, or  other  buildings,  are  in  a  defective  or  ruinous  condition, 
the  officer  having  charge  thereof,  shall  immediately  report  the  same  to 
his  superior,  and  state  the  nature  of  the  repairs  that  are  required; 
and  he  shall  be  liable  to  a  punishment  of  40  blows,  whenever  he 
neglects  to  do  so:  if,  in  consequence  of  such  neglect,  any  public  property 
should  happen  to  be  injured  or  destroyed,  he  shall,  besides  the  aforesaid 
punishment  to  which  he  is  liable,  be  obliged  to  make  good  the  same 
to  government." 

"On  the  other  hand,  if,  a  regular  notice  having  been  given  to  the 
superior  officer,  the  latter  neglects  to  authorize  the  necessary  repairs, 
he  alone  will  be  liable,  both  to  the  punishment,  and  to  the  obligation  of 
making  good  the  amount  of  the  contingent  damages."     (Sec.  431.) 

"If  any  of  the  governors  of  cities  of  the  first,  second,  or  third  order, 
or  of  any  other  provincial  sub-divisions,  instead  of  inhabiting  the  public 
buildings  expressly  allotted  to  their  use,  hire,  and  reside  in  private  houses 
belonging  to  the  inhabitants  of  the  districts  under  their  authority,  they 
shall,  for  every  such  offense,  be  punishable  with  80  blows."     (Sec.  432.) 

"When  the  embankments  of  great  rivers  are  not  duly  repaired  and 
maintained,  or  repaired  unseasonably,  the  superintending  officer  in  that 
department  shall  be  punished  with  50  blows;  if  any  lands,  goods,  or 
other  articles  of  property  of  any  kind,  are  damaged  by  an  inundation 
in  consequence  of  such  neglect  and  misconduct,  the  punishment  shall 
be  increased  to  60  blows;  and  if  any  persons  are  killed  or  injured, 
to  80  blows.    In  the  case  of  private  embankments,  the  responsible  persons 


I.II4  APPENDIX 

neglecting  to  repair  them  at  the  proper  seasons,  shall  be  liable  to  a 
punishment  of  30  blows ;  and  if  any  damage  ensues,  in  consequence  of  such 
neglect,  to  a  punishment  of  50  blows," 

"Nevertheless,  in  respect  to  those  sudden  and  impetuous  inundations, 
which  are  produced  by  heavy  rains,  or  other  similar  causes,  and  which 
sometimes  wash  away,  and  break  down  irresistibly,  all  ordinary  embank- 
ments; as  it  is  not  in  the  power  of  man  always  to  foresee  and  guard 
against  such  accidents,  the  parties  usually  held  responsible,  shall  not 
be  liable  in  such  cases  to  any  punishment."     (Sec.  434.) 

"Any  person  who  encroaches  upon  the  space  allotted  to  public  streets, 
squares,  high-ways,  or  passages  of  any  kind;  that  is  to  say,  who  appro- 
priates a  part  of  any  such  space  to  his  own  use,  by  cultivating  it,  or 
building  on  it,  shall  be  punished  with  60  blows,  and  obliged  to  level  and 
restore  the  ground  to  its  original  state," 

"Any  person  who  opens  a  passage  through  the  wall  of  his  house,  to 
carry  off  filth  or  ordure  into  the  streets  or  high-ways,  shall  be  punished 
with  40  blows;  but  in  the  case  of  a  passage  being  opened  to  carry  off 
water  only,  no  penalty  or  punishment  shall  be  inflicted."     (Sec.  435.) 

"The  repair  of  all  bridges,  whether  permanent  or  formed  for  tem- 
porary use,  of  boats  only;  and  also  of  all  roads  and  high-ways,  shall 
come  under  the  cognizance  and  jurisdiction  of  the  governors  of  the  cities 
of  the  different  orders,  their  assessors,  and  deputies ;  and  there  shall  be 
a  special  examination  of  the  same,  during  the  interval  between  the 
harvests  of  each  year,  in  order  to  ascertain  that  the  bridges  are  main- 
tained in  a  firm  and  complete  condition,  and  that  the  roads  are  solid 
and  even :  when  the  regular  communication  by  any  of  the  said  estab- 
lished roads  and  bridges  is  interrupted,  for  want  of  due  attention  to 
the  necessary  repairs,  the  responsible  magistrate  shall  suffer  a  punishment 
of  30  blows  for  his  neglect;  also  in  places  of  customary  communication, 
where  bridges  ought  to  be  built,  or  ferry-^boats  stationed  for  the  accommo- 
dation of  the  inhabitants,  a  failure  to  do  so  in  either  case,  shall  be 
punished  with  40  blows."      (Sec.  436.) 

THE  CIVIL  CODE  OF  FRANCE 

The  Code  Napoleon,  which  with  the  amendments  since  made  is  now 
called  the  Civil  Code  of  France,  contains  twenty-two  hundred  and 
eighty-one  sections  and  is  published  in  a  single  volume.  The  preliminary 
title  provides  that  laws  become  enforceable  from  the  moment  the  promul- 
gation can  have  become  known,  that  the  law  can  have  no  retroactive 
effect,  that  laws  of  police  and  public  order  are  binding  on  all  who  live 
in  the  territory,  that  all  real  estate  is  governed  by  French  law,  and 
laws  relating  to  the  status  of  French  people  apply  to  those  residing  in 
foreign  countries. 

4.     "A  judge  who  refuses  to  render  judgment  under  pretence  that  the 


CIVIL  CODE  OF  FRANCE  1115 

law  is  silent,  obscure  or  insufficient,  may  be  prosecuted  as  being  guilty 
of  denying  justice." 

5.  "Judges  are  not  allowed  to  decide  cases  submitted  to  them  by 
way  of  general  and  settled  decisions." 

6.  "Laws  relating  to  public  order  and  morals  cannot  be  derogated 
from  by  private  agreement." 

Book  I  is  "Of  Persons,"  the  first  title  is  "Of  the  Enjoyment  and  Loss 
of  Civil  Rights."  It  furnishes  rules  for  determining  who  are  French 
and  who  are  aliens  and  how  civil  rights  may  be  acquired  and  lost. 
The  second  title  is  "Of  Certificates  of  Civil  Status."  All  births  must 
be  reported  to  the  officer  of  civil  status  by  a  certificate  in  due  form 
showing  day  and  hour  of  birth,  sex,  name  and  names  of  parents  and 
this  certificate  must  be  duly  recorded.  "Before  the  celebration  of  a 
marriage  the  officer  of  civil  status  shall  make  two  publications  on  Sun- 
day at  an  interval  of  eight  days  in  front  of  the  door  of  the  city  hall." 
The  marriage  must  be  celebrated  within  a  year  or  a  new  publication 
must  be  made.  "The  marriage  shall  not  be  celebrated  before  the  third 
day  after  and  exclusive  of  the  day  of  the  second  publication."  Instru- 
ments of  opposition  may  be  served  and  be  entered  on  the  register,  and 
the  marriage  cannot  be  celebrated  until  the  opposition  is  withdrawn 
or   adjudged   insufficient. 

75.  "Upon  the  day  designated  by  the  parties,  after  the  time  for  the 
publications,  the  officer  of  civil  status  shall  read  to  the  parties  in  the 
city  hall,  in  the  presence  of  four  witnesses,  related,  or  not,  the  papers 
above  mentioned  relating  to  the  civil  status  of  the  parties  and  to  the 
formalities  of  marriage,  and  he  shall  also  read  Chapter  VI.  of  the 
respective  rights  and  duties  of  husband  and  wife  of  the  title  of  marriage." 

"He  shall  ask  the  future  husband  and  wife  and  the  persons  authorizing 
the  marriage,  if  they  are  present,  to  declare  whether  a  marriage  contract 
has  been  made,  and  in  case  of  the  affirmative,  the  date  of  this  contract 
and   also   the  name  and   residence   of  the  notary  who   made   it. 

"He  shall  receive  from  each  party,  one  after  the  other,  the  declaration 
that  they  wish  to  take  each  other  as  husband  and  wife;  he  shall  declare 
in  the  name  of  the  law  that  they  are  united  by  marriage  and  he  shall 
immediately  draw  up  a  certificate  to  that  effect." 

"No  burial  shall  take  place  without  a  permit  of  the  officer  of  civil 
status."  Certificates  of  death  are  required  to  be  made  and  the  formalities 
connected  with  them  are  given  in  detail.  Provision  is  also  made  for 
certificates  of  civil  status  of  soldiers  and  sailors.  Corrections  of  certificates 
of  civil  status  may  be  applied  for  and  granted  by  the  Tribunal  of  the 
place  where   the  certificate  has  been   drawn   up. 

The  interested  parties  shall  be  summoned  if  necessary. 
After  this   follow   Titles  Third.     "Of  Domicil"  and   Fourth   "Of   Ab- 
sentees."    Where  a  person  has  been  absent  from  his  domicil  five  years 


iii6  APPENDIX 

his  absence  may  be  adjudged  and  his  presumptive  heirs  or  legatees  put 
in  provisional  possession  of  his  property,  but  if  the  absentee  left  a 
power  of  attorney  his  absence  cannot  be  established  till  after  ten  years. 

125.  "Provisional  possession  is  only  a  deposit,  which  secures  to  those 
who  obtain  it  the  administration  of  the  property  of  the  absentee  and 
which  makes  them  accountable  to  him  if  he  appears  or  if  he  is  heard 
from." 

After  thirty  years  absence  or  one  hundred  years  from  the  birth  of 
the  absentee  the  property  may  be  finally  divided  among  the  heirs  or 
devisees.  If  the  absentee  returns  or  his  existence  is  established  the 
proceeding   is   avoided. 

Title  Fifth  is  "Of   Marriage,"   and  is   divided  into   eight  chapters. 

Males  must  be  eighteen  and  females  fifteen  to  contract  a  marriage, 
but  the  President  of  the  Republic  may  grant  dispensations  for  serious 
causes.  A  son  under  twenty-five  and  a  daughter  under  twenty-one  must 
have  the  consent  of  father  and  mother  or  the  father  alone  in  case  of 
disagreement.  Many  formalities  are  required.  Marriages  may  be  annulled 
by  action  brought  by  a  party  or  a  parent,  whose  consent  was  required 
but  not  given,  if  brought  within  the  periods  limited. 

203.  "The  husband  and  wife,  by  the  sole  fact  of  the  marriage,  assume 
together  the  obligations  of  supporting,  maintaining  and  educating  their 
children." 

"Children  owe  support  to  their  father,  mother  and  other  ascendants 
who  are  in  want." 

206.  "Sons-in-law  and  daughters-in-law  owe  likewise  under  the  same 
circumstances  support  to  their  father-in-law  and  mother-in-law,  but  this 
obligation  ceases : 

1.  When  the  mother-in-law  has   contracted  a  second  marriage; 

2.  When  the  husband  and  wife  owing  to  whom  the  affinity  existed 
and  the  children  born  of  his  or  her  marriage  with  such  wife  or  husband 
are  dead." 

212.  "Husband  and  wife  owe  each  other  fidelity,  support,  jmd  assistance." 

213.  "A  husband  owes  protection  to  his  wife;  a  wife  obedience  to  her 
husband." 

214.  "A  wife  is  bound  to  live  with  her  husband  and  to  follow  him 
wherever  he  deems  proper  to  reside.  The  husband  is  bound  to  receive 
her,  and  to  supply  her  with  whatever  is  necessary  for  the  wants  of 
life,  according  to  his  means  and  condition." 

215.  "A  wife  cannot  sue  in  court  without  the  consent  of  her  husband, 
even  if  she  is  a  public  tradeswoman,  or  if  there  is  no  community,  or 
she  is  separated  as  to  property." 

217.  "A  wife,  even  when  there  is  no  community,  or  when  she  is 
separated  as  to  property,  cannot  give,  convey,  mortgage,  or  acquire 
property,  with  or  without  consideration,  without  the  husband  joining  in 
the  instrument  or  giving  his  written  consent." 


CIVIL  CODE  OF  FRANCE    .  1117 

If  the  husband  refuse  to  allow  his  wife  to  sue  or  execute  an  instrument, 
the  Tribunal  of  First  Instance  may  grant  her  leave.  A  married  trades- 
woman may  bind  herself  by  her  contracts  in  her  business  without  the 
consent  of  her  husband. 

22"/.     "Marriages  are  dissolved  : 

1.  By  the   death  of  the  husband   or   wife; 

2.  By  a  divorce  lawfully  decreed; 

3.  By  a  final  sentence  against  the  husband  or  wife  to  a  punishment 
occasioning  civil   death."      (Civil   death   was   abolished   in    1854.) 

228. » "A  wife  cannot  contract  a  second  marriage  until  ten  months  have 
elapsed  since  the   dissolution  of   the  previous   marriage." 

Title  Sixth  is  "Of  Divorce." 

Adultery,  violence,  cruelty,  gross  insults  and  a  sentence  to  degrading 
corporal  punishment  are  grounds  of  divorce.  By  the  Code  Napoleon 
the  wife  can  sue  the  husband  for  a  divorce  on  the  ground  of  adultery 
only  when  he  brought  his  concubine  into  their  common  residence.  This 
clause  was  striken  out  by  amendment  in  1^4,  and  the  same  rules  now 
apply  to  both  husband  and  wife.  Divorces  may  be  either  absolute  or 
from  bed  and  board.  The  court  has  power  to  make  provision  for  tem- 
porary care  of  property  and  support  and  the  care  of  the  children.  Pub- 
lication of  the  proceedings  by  the  press  is  prohibited  under  penalty. 
Appeals  from  judgments  of  divorce  may  be  taken  to  the  Court  of  Cassation 
and  such  an  appeal  stays  execution. 

Alimony  may  be  granted  to  either  party,  not  exceeding  one-third  the 
income  of  the  other.  The  court  determines  as  to  the  custody  of  the 
children. 

Title  Seventh  is  "Of  Paternity  and  Filiation."  It  gives  rules  for  deter- 
mining the  legitimacy  of  children  and  for  the  acknowledgement  of 
natural  children.    Title  Eighth  is  "of  adoption  and  officious  guardianship." 

343.  "Persons  of  either  sex  can  only  adopt  when  they  are  over  fifty 
years  of  age;  when,  at  the  time  of  the  adoption,  they  have  no  children 
nor  legitimate  descendants,  and  when  they  are  at  least  fifteen  years  older 
than  the  individuals  whom  they  propose  to  adopt." 

Adoption  cannot  take  place  before  the  adopted  is  of  full  age,  nor 
till  after  the  Tribunal  of  First  Instance  of  the  District  in  which  the 
adopter  resides  has  determined  that  there  is  occasion  for  it. 

361.  "Every  individual  over  fifty  years  of  age,  without  children  or 
legitimate  descendants,  who  wishes,  during  the  minority  of  a  person 
to  attach  that  person  to  himself  in  a  legal  way,  may  become  his  officious 
guardian  by  obtaining  the  consent  of  the  father  and  mother  of  the  child, 
or  of  the  survivor  of  them,  or  in  default  thereof  the  consent  of  the 
family  council,  or  finally,  if  the  child  has  no  parents  who  are  known, 
the  consent  of  the  administrators  of  the  asylum  where  he  has  been  re- 
ceived or  the  municipality  of  the  place  of  his  residence." 


iii8  APPENDIX 

362.  "A  married  person  cannot  become  an  officious  guardian  without 
the  consent  of  the  husband  or  wife." 

364.  "Such  guardianship  shall  only  be  allowed  in  favor  of  children 
of  less  than  sixteen  years  of  age. 

It  carries  with  it,  without  prejudice  to  any  special  stipulations,  the 
obligation  to  support  the  ward,  to  bring  him  up,  and  to  place  him  in  a 
condition  to  earn  a  living.'' 

Title  Ninth  is  "Of  Paternal  Authority." 

376.  "If  the  child  has  not  yet  commenced  his  sixteenth  year,  the 
father  can  have  him  incarcerated  during  a  period  of  time  not  exceeding 
one  month:  for  that  purpose  the  Presiding  Justice  of  the  Tribunal  of 
the  District  must  at  his  request  issue  an  order  of  arrest." 

Z'77.  "From  the  beginning  of  the  childs  sixteenth  year,  until  his 
majority  or  emancipation,  the  father  can  only  ask  that  the  child  be 
incarcerated  for  six  months  at  the  utmost:  he  shall  apply  to  the  Pre- 
siding Justice  of  said  Tribunal,  who,  after  having  conferred  with  the 
King's  Attorney  (Republic's  Attorney),  shall  issue  an  order  of  arrest  or 
refuse  it,  and  may  in  the  former  case  reduce  the  time  of  the  incarceration 
asked  for  by  the  father." 

378.  "In  either  case  there  shall  be  no  writing  and  no  judicial  proceed- 
ings with  the  exception  of  the  order  of  arrest  itself,  in  which  the  reasons 
shall  not  be  stated. 

"The  father  shall  only  be  bound  to  sign  an  undertaking  to  pay 
all  the  expenses  and  to  furnish  proper  support." 

Title  Tenth  is  "Of  Minority,  of  Guardianship,  and  of  Emancipation."^ 

The  period  of  minority  extends  to  the  age  of  twenty-one  years.  A 
father  is  administrator  of  the  property  of  his  minor  children,  and  in 
case  of  his  death  the  mother  is  entitled  to  the  guardiansliip. 

391.  "The  father,  nevertheless,  may  appoint  a  special  counsel  to  the 
surviving  mother  who  is  guardian,  without  whose  advice  she  cannot  take 
any  steps  in  connection  with  the  guardianship. 

"If  the  father  specifies  the  purposes  for  which  the  counsel  is  appointed,, 
the  guardian  shall  be  able  to  act  in  all  other  matters  without  his 
assistance." 

In  case  the  mother  remarries,  her  husband  becomes  joint  guardian 
with  her.  If  father  and  mother  be  dead  the  grandparents  are  entitled 
to  the  guardianship. 

405.  "When  a  child  who  is  a  minor  and  not  emancipated  shall  be 
without  father  or  mother  or  guardian  appointed  by  his  father  or  mother 
or  male  ascendants,  and  also  when  the  guardian  of  one  of  the  classes 
above  mentioned  shall  fall  under  one  of  the  causes  of  exclusion  hereafter 
referred  to,  or  shall  have  been  duly  excused,  the  appointment  of  the 
guardian  shall  be  made  by  the  family  council." 

407.    "A    family   council   shall    be    composed,    not   counting   the   Justice 


CIVIL  CODE  OF  FRANCE  1119 

of  the  Peace,  of  six  blood  relatives,  or  relatives  by  marriage,  chosen 
as  well  in  the  country  where  the  guardianship  takes  rise  as  within  a 
distance  of  two  myria-meters,  and  one-half  of  such  relatives  shall  be 
on  the  paternal  side  and  one-half  on  the  maternal  side,  following  the 
order  of  proximity  in  each  line. 

A  blood  relative  shall  be  referred  to  a  relative  by  marriage  of  the 
same  degree;  and  among  relatives  of  the  same  degree  the  older  shall 
be  preferred  to  the  younger." 

409.  "When  the  blood  relatives  or  relatives  by  marriage  in  one  or  the 
other  line  shall  not  be  sufficiently  numerous  on  the  spot  or  within  the 
distance  designated  by  article  407,  the  Justice  of  the  Peace  shall  call 
the  blood  relative  or  relatives  by  marriage  domiciled  at  a  greater  distance, 
or  citizens  of  the  country  known  to  have  had  continuous  relations  of 
friendship  with  the  minor's   father  or  mother." 

410.  "The  Justice  of  the  Peace  may,  even  if  there  is  a  sufficient 
number  of  blood  realtives  or  relatives  by  marriage  on  the  spot,  allow 
citations  to  be  issued  to  blood  relatives  or  relatives  by  marriage  who 
are  of  a  nearer  degree  or  of  the  same  degree  as  the  blood  relatives 
or  relatives  by  marriage  present,  whatever  may  be  the  distance  at  which 
they  are  domiciled.  This,  however,  shall  be  done  in  such  a  way  as 
to  omit  some  of  the  latter,  and  so  that  the  number  mentioned  in  the 
foregoing  articles  shall  not  be  exceeded." 

412.  "The  blood  relatives,  relatives  by  marriage,  or  friends  so  called, 
shall  be  bound  to  appear  in  person  or  to  be  presented  by  a  special  attorney. 

An  attorney-in-fact  cannot  represent  more  than  one  person." 

416.  "The  family  council  shall  be  presided  over  by  the  Justice  of  the 
Peace,  who  has  a  deliberative  vote  or  a  casting  vote  in  case  of  division." 

420.  "In  every  case  of  guardianship  there  shall  be  an  assistant  guardian 
appointed  by  the  family  council. 

"His  duties  shall  be  to  protect  the  interests  of  the  minor  when  they 
conflict  with  those  of  the  guardian." 

There  are  many  provisions  relating  to  exemption  from  service  as 
guardians  and  incapacity  to  act  as  such.  The  family  council  determines 
the  amount  to  be  allowed  as  yearly  expenses  of  the  minor  and  of  the 
administration,  and  a  sale  or  mortgage  of  real  estate  must  be  authorized 
by  the  family  council  and  approved  by  the  Tribunal  of  First  Instance. 
The  family  exercises  a  general  supervision  over  the  guardian  and  the 
guardian  must  furnish  the  assistant  guardian  statements  of  his  accounts 
when  called  for  by  the  council. 

476.  "A  minor  is  emancipated  by  right  by  his  marriage." 

477.  "A  minor,  even  unmarried,  can  be  emancipated  by  his  father^ 
or  in  default  of  his  father,  by  his  mother,  when  he  has  reached  the  full 
age  of   fifteen  years. 

"Such  emancipation  takes  place  upon  the  sole  declaration  of  the  father 
or  mother,  received  by  the  Justice  of  the  Peace  attended  by  his  clerk." 


i'i20  APPENDIX 

A  minor  who  has  no  father  or  mother  may  be  emancipated  at  eighteen 
by  the  family  council. 

489.  "A  person  of  full  age  who  is  in  a  usual  state  of  imbecility,  in- 
sanity or  madness,  shall  be  interdicted,  even  if  such  condition  is 
accompanied  by  lucid  moments." 

Application  for  interdiction  is  made  to  the  Tribunal  of  First  Instance. 

494.  "The  Tribunal  shall  order  the  family  council,  composed  in  the 
manner  specified  in  section  4  of  chapter  II.  of  the  Title  of  Minority, 
of  Guardianship  and  of  Emancipation,  to  give  its  opinion  on  the  condition 
of  the  person  whose  interdiction  is  sought  for." 

After  receiving  this  opinion  the  Tribunal  examines  the  defendant  and 
decides  the  case.  If  the  interdiction  is  allowed  a  guardian  and  an 
assistant  guardian  are  appointed  in  the  same  manner  as  in  the  case  of 
guardians  of  minors,  and  the  interdicted  person  is  assimilated  to  a 
minor  as  to  his  person  and  property.  Spendthrifts  may  be  prohibited 
from  disposing  of  their  property  without  the  assistance  of  counsel 
appointed  by  the  Tribunal. 

Book  2  treats   "Of   Property   and  of   Different  kinds   of   Ownership." 

Real  estate  includes  lands,  buildings,  crops  till  cut  or  gathered  and 
structures  for  use  on  the  land. 

524.  "The  things  'which  an  owner  of  a  piece  of  property  has  placed 
thereupon  for  the  use  or  cultivation  of  such  property  are  real  estate 
by  destination. 

"Thus,  the  following  things  are  real  estate  by  destination,  when  they 
have  been  placed  by  the  owner  for  the  use  and  cultivation  of  th^  property : 

Cattle  used  for  farming  purposes; 

Farming  implements ; 

Seeds  given  to  farmers  or  settlers  paying  rent  in  kind ; 

Pigeons  belonging  to  the  pigeon  house; 

Warren   rabbits; 

Beehives ; 

Fish  in  the  ponds; 

Wine  presses,  boilers,  stills,  vintage  tubs  and  barrels; 

The  necessary  implements  for  working  ironworks,  paper-mills  and 
other  factories; 

Straw  and  manure. 

"All  personal  articles  which  the  owner  has  placed  upon  the  property  to 
remain   there    perpetually   are   also    real   estate    by    destination." 

528.  "Bodies  which  can  move  from  one  place  to  another,  whether 
they  move  themselves,  such  as  animals,  or  whether  they  cannot  move 
without  the  assistance  of  extraneous  power,  such  as  inanimate  things, 
are  personal  property  of  nature." 

Bonds,  annuities  and  shares  in  financial,  commercial  and  manufacturing 
companies  are  personal  property  even  though  the  company  owns  lands. 


CIVIL  CODE  OF  FRANCE  1121 

"Private  individuals  have  the  free  disposal  of  what  belongs  to  them 
subject  to  the  restrictions  established  by  law." 

The  Second  title  of  Book  2  is  "Of  Ownership,"  and  defines  the  rights 
of  owners  to  what  the  thing  produces  and  of  a  land  owner  to  accretion 
from  alluvion.  What  is  added  imperceptibly  belongs  to  the  riparian 
owner,  and  he  loses  what  is  imperceptibly  washed  away;  but  where  a 
considerable  portion  of  a  field,  which  can  be  identified,  is  moved  across 
or  down  a  stream,  the  owner  may  claim  or  hold  it  within  one  year. 
If  a  stream  navigable  for  boats  or  rafts  opens  a  new  bed,  abandoning 
the  old,  the  owners  of  the  land  occupied  by  the  new  bed  take  the  old 
way   of   compensation. 

"When  the  right  of  accession  applies  to  two  movable  things  belonging 
to  two  different  owners,  it  is  entirely  governed  by  the  principles  of 
natural  equity."  The  rules  given  as  examples  generally  give  the  thing 
constructed  from  materials  of  two  owners,  or  materials  of  one  and  labor 
of  another,  to  the  one  contributing  the  principal  value  with  compensation, 
to  the  other   for  what  he  has   furnished. 

Title  Third  is  "Of  Usufruct,  of  Use  and  Habitation." 

582.  "A  usufructuary  has  the  right  to  the  enjoyment  of  all  kinds  of 
fruits,  whether  natural,  cultivated,  or  civil,  which  the  thing  of  which  he 
has  the  usufruct  can  produce." 

583.  "Natural  fruits  are  those  which  result  from  the  spontaneous  pro- 
duction of  the  earth.  The  increase  and  young  of  cattle  are  also  natural 
fruits. 

"Cultivated  fruits  of  land  are  those  obtained  by  cultivation." 

584.  "Civil  fruits  are  the  rents  of  houses,  the  interest  on  sums  due,, 
and  payments  of  annunities. 

"The  prices  of  leases  on  shares  are  also  included  in  the  class  of  civil 
fruits." 

585.  "Natural  and  cultivated  fruits  hanging  from  branches  or  standing 
upon   roots   when  the  usufruct  begins,   belong  to  the   usufructuary. 

"Those  which  are  in  the  same  state  when  the  usufruct  comes  to  an 
end  belong  likewise  to  the  owner,  without  compensation  from  either 
side  for  ploughing  and  sowing,  but  also  without  prejudice  to  the  portion 
of  fruits  which  might  belong  to  the  settler  paying  in  kind,  if  there  was 
such  a  settler  at  the  beginning  or  at  the  termination  of  the  usufruct."" 

586.  "Civil  fruits  are  supposed  to  be  gained  day  by  day  and  belong 
to  the  usufructuary  in  proportion  to  the  duration  of  his  usufruct.  This 
rule  applies  to  the  prices  of  leases  on  shares  as  well  as  to  rents  of  houses 
and  other  civil  fruits." 

587.  "If  a  usufruct  includes  things  which  cannot  be  used  without 
being  consumed,  such  as  money,  grain,  liquors,  the  usufructuary  has  the 
right  to  use  them,  but  on  condition  of  returning  others  in  like  quantity,, 
quality  and  value,  or  their  estimation  at  the  end  of  the  usufruct." 


1122  APPENDIX 

A  usufructuary  may  lease  or  assign  his  right  to  another.  He  may 
continue  to  work  mines  already  opened  but  not  open  new  ones.  The 
usufructuary  is  bound  to  make  ordinary  repairs  but  not  to  rebuild  or 
reconstruct.  Heavy  repairs  are  to  be  made  by  the  owner.  The  right 
of  the  usufruct  is  forfeited  by  committing  waste  or  allowing  the  property 
to  deteriorate  for  want  of  repairs. 

625.  "The  right  of  use  and  habitation  are  acquired  and  lost  in  the 
same   manner   as   usufruct." 

634.    ''The  right  of  habitation  cannot  be  assigned  or  let." 

Title  Four  is  "Of  Servitudes  or  Land  Burdens."  There  are  sixty- 
four  sections  under  this  title  dealing  with  the  use  of  streams  and 
springs  of  water,  party  walls,  ditches  and  hedges,  the  repair  of  buildings 
where  various  floors  belong  to  different  owners,  windows  and  rights 
of  way.  This  title  is  remarkably  full  and  clear  in  its  provisions  with 
reference  to  party  walls  and  other  works  near  or  upon  the  boundaries 
of  land  and  is  designed  to  facilitate  the  erection  of  buildings  by  the 
owners  of  adjacent  lots  on  the  boundary  with  equal  burdens  to  each 
owner. 

Book  3  is  "Of  the  Different  Ways  of  Acquiring  Property."  Title  First 
is  "Of  Successions"  and  deals  at  length  with  the  inheritance  of  property. 

745.  "Children  of  their  descendants  inherit  from  their  father  and  mother, 
grandfathers  and  grandmothers,  and  other  ascendants,  without  distinc- 
tion of  sex  nor  of  primo-geniture,  and  even  if  they  are  born  of  different 
marriages. 

"They  inherit  in  equal  shares  and  "per  capita"  when  they  are  all  of 
the  first  degree  and  inherit  in  their  own  right;  they  inherit  "per  stirpes" 
when  all  or  part  of  them  take  by  representation." 

746.  "H  a  decedent  has  left  no  issue,  or  brothers  or  sisters  or  descend- 
ants of  them,  the  succession  is  divided  in  halves  between  the  ascendants 
of  the  paternal  line  and  the  ascendants  of  the  maternal  line. 

"The  ascendant  who  is  of  the  nearest  degree  takes  the  half  alloted  to 
his   line  to   the   exclusion   of   all   others. 

"The  ascendants  of  the  same  degree  inherit  "per  capita." 

750.  "In  case  of  the  previous  decease  of  the  father  and  mother  of 
a  person  who  has  died  without  issue,  his  brothers  and  sisters  or  their 
decendants  are  called  to  the  succession  to  the  exclusion  of  the  ascendants 
or   other    collateral   relatives. 

"They  inherit  either  in  their  own  right  or  by  representation,  as  is 
provided    in   section   2   of    the   present    chapter." 

751.  "If  the  father  and  mother  of  the  person  who  has  died  without 
issue  have  survived  him,  his  brothers  and  sisters  or  their  representatives 
are  only  entitled  to  one-lialf  of  the  succession.  If  only  the  father  or 
mother  survives,  they  are  entitled  to  take  three-quarters." 

752.  "The  division  of  the  half  or  of  the  three-quarters  belonging  to 
the   brothers    and    sisters,    according   to    the    provisions    of    the   previous 


CIVIL  CODE  OF  FRANCE  1123 

article,  is  made  between  them  in  equal  portions  if  they  are  all  of  the 
same  marriage;  if  they  are  of  different  marriages  the  division  is  made 
by  halves  between  the  two  paternal  and  maternal  lines  of  the  decedent: 
those  of  full  blood  take  in  both  lines  and  those  of  the  mother's  and 
those  on  the  father's  side  each  take  in  their  line  only;  if  there  are 
brotherg  and  sisters  on  one  side  only,  they  inherit  the  whole,  to  the 
exclusion    of   all   relatives    in  "the    other   line." 

"Relatives   beyond  the   twelfth   degree   do   not   inherit." 

Natural  children  inherit  from  parents  if  lawfully  acknowledged  by 
them  but  not  from  relatives  of  their  parents.  In  case  there  are  legitimate 
children  the  natural  child  takes  only  one  third  of  the  portion  he  would 
have   had   if   legitimate. 

'j(y'j.  "When  the  decedent  leaves  no  relatives  of  a  degree  entitling  them 
to  inherit,  and  no  natural  children,  the  property  of  the  succession  be- 
longs absolutely  to  the  surviving  husband  or  wife,  not  divorced  and 
against  whom  no  judgment  of  separation  from  bed  and  board  has 
become    final, 

"The  surviving  husband  or  wife  not  divorced  who  does  not  inherit  the 
full  ownership  and  against  whom  no  judgment  of  separation  from  bed 
and  board  has  become  final  has  upon  the  succession  of  the  predeceased 
wife  or  husband  a  right  of  usufruct  which  is: 

"Of  one-quarter,  if  the  decedent  leaves  one  or  several  children  born  of 
the  marriage; 

"Of  the  smallest  portion  of  a  Igitimate  child,  which  portion  shall  not 
exceed  one-quarter,  if  the  decedent  has  children  born  of  a  previous 
marriage ; 

"Of  one-half  in  all  other  cases,  whatever  may  be  the  number  and  the 
kind  of  heirs; 

"The  calculation  shall  be  made  upon  a  total  composed  of  all  the  prop- 
erty existing  at  the  death  of  the  decedent,  to  which  shall  be  fictitiously 
added  the  property  which  he  has  disposed  of,  either  by  instrument  inter 
vivos  or  by  will,  for  the  benefit  of  persons  entitled  to  inherit,  not  exempt 
from  collation. 

"But  the  surviving  husband  or  wife  can  only  exercise  his  or  her  right 
against  the  property  which  the  decedent  has  not  disposed  of  by  instrument 
inter  vivos  or  by  will  without  prejudice  to  the  rights  to  the  reserve  and 
the   rights   of   reversion. 

"He  or  she  shall  cease  to  exercise  this  right  if  he  or  she  has  received 
from  the  decedent  advantages,  even  made  iby  preciput  and  above  the 
share,  of  which  the  amount  reaches  the  proportion  of  the  rights  which 
the  present  law  grants  to  him  or  her,  and  if  this  amount  is  less,  he  or 
she  can  only  claim  the  balance  of  his  or  her  usufruct. 

"Until  the  final  division,  the  heirs  can,  by  giving  sufficient  security, 
ask  that  the  usufruct  of  the  surviving  husband  or  wife  be  changed  into 


1124  APPENDIX 

a  corresponding  annuity.  If  they  disagree,  the  Tribunals  may  in  their 
discretion  order  this  change. 

"In  case  of  a  new  marriage  the  usufruct  of  the  husband  or  wife  ceases 
if  there  are  descendants  of  the  decedent." 

768.  "If  there  is  no  surviving  husband  or  wife,  the  succession  escheats 
to  the  State." 

A  succession  can  be  accepted  absolutely,  or  under  benefit  of  inventory, 
or  renounced  by  the  heir.  The  effect  of  the  benefit  of  inventory  is  to 
relieve  the  heir  from  liability  for  the  debts  of  the  succession  beyond 
the  value  of  the  property  inherited.  Numerous  sections  relate  to  the 
division  of  estates  among  heirs  and  the  protection  of  the  rights  of 
creditors. 

843.  "Every  heir,  even  a  beneficiary  heir,  coming  into  a  succession 
shall  return  to  his  co-heirs  everything  he  has  received  from  the  decedent, 
directly  or  indirectly,  by  donation  intev  vivos:  he  cannot  keep  the  dona- 
tions nor  claim  the  legacies  left  to  him  by  the  decedent  unless  these 
donations  and  legacies  have  been  made  to  him  expressly  by  preciput 
and   above   his   share   or   with   exemption   from   collation." 

852.  "The  expense  of  support,  maintenance,  tuition,  apprenticeship, 
the  ordinary  expenses  of  fitting  out,  those  for  weddings  and  usual  gifts, 
shall  not  be  collated." 

Provision  is  made  in  detail  for  collation  in  particular  cases  by 
contribution  or  taking  less  of  the  estate. 

870.  "The  co-heirs  contribute  among  themselves  to  the  payment  of 
the  debts  and  liabilities  of  the  succession,  each  one  proportionately  to 
what  he  takes." 

871.  "A  legatee  under  universal  title  contributes  with  the  heirs  pro 
rata  to  what  he  takes,  but  a  special  legatee  is  not  liable  for  the  debts 
and  expenses,  with  the  exception  of  the  action  upon  a  mortgage  which 
may  lie  against  the  real  estate  devised." 

When  division  of  an  estate  is  made,  the  title  of  each  to  the  part  assigned 
him  is  warranted  by  his  co-heirs  and  in  case  of  ejectment  they  must 
indemnify  him  in  proportion  to  their  shares  of  the  whole  estate.  "Divisions 
of  estates  can  be  rescinded  on  account  of  violence  or  fraud." 

Title   Second  is   "Of  Donations   Inter  Vivos  and   of   Wills." 

894.  "A  donation  inter  vivos  is  an  act  by  which  the  donor  divests  himself 
at  the  time  and  irrevocably  of  the  thing  given  in  favor  of  the  donee,  who 
accepts  it." 

895.  "A  will  is  an  instrument  by  which  a  testator  disposes,  for  the 
time  when  he  will  be  no  longer  living,  of  the  whole  or  part  of  his 
property,  and  which  he  can  revoke." 

"Entails  are  prohibited. 

"Every  provision  by  which  a  donee,  an  heir  appointed,  or  a  legatee  shall 
be  required  to  keep  property  and  to  return  it  to  a  third  party  shall  be 
void,  even  as  against  the  donee,  the  heir  appointed  or  the  legatee. 


CIVIL  CODE  OF  FRANCE  1125 

"Nevertheless,  property  which  is  free  and  which  forms  part  of  the 
endowment  of  a  hereditary  title  which  the  King  has  created  in  favour 
of  a  Prince  or  of  the  head  of  a  family  can  be  transmitted  by  way  of 
inheritance,  as  is  provided  by  the  Imperial  Act  of  the  13th  March,  1806, 
and  by  the  senatus  consultum  of  the  14th  August  following."* 

*  (This  change  was  repealed  in  1849.) 

Some  exceptions  are  given  however  and  this  does  not  interfere  with 
giving  the  usufruct  to  one  and  the  title  to  another.  Adults  of  sound 
mind  may  make  donations  or  wills  but, 

905.  "A  married  woman  cannot  make  a  donation  inter  vivos  without 
the  special  assistance  or  consent  of  her  husband,  or  without  having  been 
authorized  by  the  Court  in  accordance  with  what  is  provided  by  articles 
217  and  219  of  the  Title  Of  Marriage. 

"She  does  not  require  the  consent  of  her  husband,  nor  the  authorization 
of  the  Court,  to  dispose  of  property  by  will." 

913.  "Advantages  resulting  from  donations  inter  vivos  or  from  wills 
cannot  exceed  one-half  of  the  property  of  the  person  who  has  made  such 
disposition,  if  he  leaves  one  legitimate  child  at  his  death;  one-third  if 
he  leaves  two  children;  one-fourth  if  he  leaves  three  or  a  greater  number." 

Descendants  of  whatever  degree  are  included  as  children  and  donation 
cannot  exceed  half  if  the  donor  leaves  ascendants  in  both  lines  and  three- 
fourths  if  he  leaves  them  in  one  line. 

916.  "If  there  are  no  ascendants  and  descendants,  advantages  by  dona- 
tions inter  vivos  or  by  wills  can  exhaust  all  the  property." 

920.  "'Donations,  either  inter  vivos  or  mortis  causa,  which  exceed  the 
portion  of  property  which  can  be  disposed  of,  shall  be  reduced  to  that 
portion  when  the  succession  becomes  open." 

931.  "All  instruments  containing  a  donation  inter  vivos  shall  be  executed 
before  notaries  in  the  ordinary  form  of  contracts,  and  the  original  shall 
remain  with  them,  or  otherwise  such  instruments  shall  be  void." 

A  donation  is  not  operative  until  accepted  by  a  formal  instrument. 

939.  "When  a  donation  is  made  of  property  which  can  be  mortgaged,, 
the  transcription  of  the  deeds  containing  the  donation  and  the  acceptance 
and  notice  of  acceptance  which  might  have  taken  place  by  a  separate 
instrument,  shall  be  made  at  the  bureau  of  mortgages  in  the  District  where 
the  property  is  situated." 

953.  "A  donation  inter  vivos  can  only  be  revoked  for  non-execution  of 
the  conditions  under  which  it  was  made,  on  account  of  ingratitude,  or  if 
children    have   been    born    to   the    person." 

Revocations  for  ingratitude  must  be  enforced  by  action  and  for  the 
specified  cause.  The  grounds  of  revocation  are,  seeking  to  take  the  life 
of  the  donor,  cruelty  toward  him,  the  commission  of  a  felony  or  serious 
wrong,  or  refusal  to  give  the  donor  support. 

967.     "Every  person  can  dispose  of  his  property  by  will,  either  in  the 


1126  APPENDIX 

form  of  an  appointment  of  an  heir  or  of  the  making  of  a  legacy  or  under 
any  other   denomination   sufficient  to  express   his   wish," 

969.  "A  will  can  be  holographic,  or  can  be  made  as  a  public  instrument, 
or    in    the    mystic    form." 

970.  "A  holographic  will  shall  not  be  valid  unless  it  is  wholly  written, 
dated,  and  signed,  in  the  hand  of  the  testator.  It  is  not  subject  to  any 
other  formality." 

971.  "A  will  made  in  the  public  form  shall  be  received  by  two  notaries 
in  the  presence  of  two  witnesses,  or  by  one  notary  in  the  presence  of 
four  witnesses." 

972.  "If  a  will  is  received  by  two  notaries,  it  shall  be  dictated  by  the 
testator  and  shall  be  written  out  by  one  of  the  notaries  as  it  is  dictated. 

If  there  is  only  one  notary,  it  shall  also  be  dictated  by  the  testator  and 
written  out  by  such  notary. 

In  both  cases  it  shall  be  read  over  to  the  testator  in  the  presence  of  the 
witnesses. 

AH  of  which  shall  be  expressly  mentioned." 

976.  "When  a  testator  desires  to  make  a  mystic  or  secret  will,  he  shall 
be  obliged  ,to  sign  the  instrument,  whether  he  has  written  it  himself  or 
whether  he  has  caused  it  to  be  written  out  by  another  person.  The  paper 
containing  his  will,  or  the  paper  used  as  an  envelope,  if  there  is  one, 
shall  be  closed  and  sealed.  The  testator  shall  present  it  thus  closed  and 
sealed  to  the  notary  and  to  six  witnesses  at  least,  or  he  shall  have  it 
closed  and  sealed  in  their  presence;  and  he  shall  declare  that  the  contents 
of  this  paper  are  his  will,  written  and  signed  by  him,  or  written  out  by 
another  person  and  signed  by  him :  the  notary  shall  draw  up  a  certificate 
of  superscription  which  shall  be  written  out  on  this  paper,  or  on  the  sheet 
used  as  an  envelope;  such  certificate  shall  be  signed  as  well  by  the  testator 
as  by  the  notary,  and  also  by  the  witnesses.  All  of  which  shall  be  done 
without  interruption  and  without  attending  to  other  business ;  and  in  case 
the  testator  should  not  be  able  to  sign  the  certificate  of  superscription, 
owing  to  a  cause  having  arisen  since  the  signing  of  the  will,  the  declaration 
which  he  makes  thereof  shall  be  mentioned,  and  in  such  case  it  shall  not 
be  necessary  to  increase  the  number  of  witnesses." 

Soldiers  and  sailors  may  execute  wills  before  certain  officers  designated, 
and  citizens  on  voyages  at  sea  or  in  foreign  parts  may  make  them  before 
witnesses  in  the  forms  pointed  out.  Very  full  provisions  are  made  with 
reference  to  the  distribution  of  legacies,  the  appointment  of  executors 
and  the  form  and  effect  of  marriage  contracts. 

1091.  "Husband  and  wife  may,  by  their  marriage  contract,  make  to' 
each  other,  reciprocally  or  the  one  to  the  other,  such  donations  as  they 
may  deem  proper,  subject  to  the  rules  hereafter  expressed." 

1094.  "The  husband  or  wife  may,  either  by  the  marriage  contract  or 
during  the  marriage,  in  case  he  or  she  leaves  no  children  or  descendants, 
dispose  in  favour  of  the  other  in  full  ownership  of  all  which  he  or  she 


CIVIL  CODE  OF  FR.^NCE  1127 

could  dispose  of  in  favor  of  a  stranger,  and  besides,  of  the  usufruct  of 
the  whole  portion  of  which  the  law  does  not  allow  the  disposal  to  the 
detriment  of  heirs. 

"And  in  case  the  husband  or  wife  who  is  the  donor  leaves  children  or 
descendants,  he  or  she  may  give  to  the  other  either  a  quarter  in  full  owner- 
ship, and  the  usufruct  of  another  quarter,  or  only  the  usufruct  of  one  half 
of  all  his  or  her  property." 

The  subject  of  succession,  donations  and  wills  covers  eighty-three  pages 
of  the  code  or  nearly  one-sixth  of  the  whole. 

Title  Third  is  "Of  Contracts  or  Conventional  Obligations  in  General." 
It  covers  one  hundred  and  nine  pages  and  is  in  main  a  clear  statement 
of  the  law  of  contracts  generally  recognized  by  all  commercial  people, 
though  some  of  its  provisions  are  peculiar.  The  first  two  chapters  give 
definitions  of  various  kinds  of  contracts  and  conditions  essential  to  a  valid 
contract. 

1 134.  "Contracts  lawfully  entered  into  take  the  place  of  the  law  for 
those  who  have  made  them. 

"They  cannot  be  cancelled  unless  it  is  by  mutual  consent  or  for  causes 
allowed  by  law. 

'They  must  be   performed   in    good   faith." 

1 142.  "Every  obligation  to  do  or  not  to  do  resolves  itself  in  damages 
in  case  of  non-performance  on  the  part  of  the  debtor." 

1 149.  "The  damages  due  to  the  creditor  are  generally  for  the  loss  which 
he  has  made  or  the  profit  which  he  has  been  deprived  of,  subject  to  the 
exceptions  and  restrictions  hereinafter  contained." 

1 1 52.  "When  the  agreement  provides  that  the  party  who  fails  to  perform 
it  shall  pay  a  certain  amount  of  damages,  no  larger  or  smaller  amount  can 
be  awarded  to  the  other  party." 

1 1 53.  "In  the  obligations  which  are  limited  to  the  payment  of  a  certain 
sum,  the  damage  resulting  from  delay  in  the  performance  shall  only  consist 
in  a  judgment  for  the  interest  allowed  by  law,  subject  to  the  special 
rules  applying  to  commerce  and  to  security. 

"These  damages  are  due  without  the  creditor  being  obliged  to  show  any 
loss. 

"They  are  only  due  from  the  day  of  the  demand,  except  in  the 
cases  in  which  the  law  makes  them  run  as  a  matter  of  right." 

1 156.  "The  common  intention  of  the  contracting  parties  should  be  sought 
in  contracts  rather  than  taking  the  literal  meaning  of  the  words." 

Various  sorts  of  conditions  are  defined  and  the  rights  and  liabilities 
of  parties  to  joint  and  several,  divisible  and  indivisible  contracts  are  stated 
in  accordance  with  principles  of  equity. 

1235.  "Every  payment  supposes  a  debt ;  what  has  been  paid  without  being 
due  is  subject  to  be  reclaimed. 

"One  is  not  allowed  to  reclaim  payment  in  case  of  natural  obligations 
which  have  been  voluntarily  paid." 


1 128  APPENDIX 

1236.  "An  obligation  can  be  paid  by  any  person  who  has  no  interest 
therein,  provided  such  party  acts  in  the  name  of  and  for  the  purpose 
of  releasing  the  debtor,  or  if  he  acts  in  his  own  name,  provided  he  is 
not  subrogated  to  the  rights  of  the  creditor." 

1237.  "The  obligation  to  do  a  thing  cannot  be  satisfied  by  a  third  party 
against  the  wish  of  the  creditor,  when  the  latter  is  interested  in  having  it 
fulfilled  by  the  debtor  himself." 

1249.  "Subrogation  to  the  rights  of  a  creditor  for  the  benefit  of  a  third 
person   who   pays   his   is   either   conventional   or   legal." 

"1250.    "Such  subrogation  is  conventional: 

"i.  When  the  creditor  receiving  payment  from  a  third  person  subrogates 
him  to  his  rights,  actions,  privileges  or  mortgages  against  the  debtor:  such 
subrogation  must  be  express  and  made  at  the  same  time  as  the  payment ; 

"2.  When  the  debtor  borrows  a  suni  for  the  purpose  of  paying  his  debt 
and  of  subrogating  the  lender  to  the  rights  of  the  creditor.  In  order 
that  such  a  subrogation  should  be  valid,  it  is  necessary  that  the  instrument 
by  which  the  loan  is  made  and  the  receipt  thereof  should  be  drawn  up 
before  notaries;  that  in  the  instrument  for  the  loan  it  shall  be  declared 
that  the  sum  has  been  borrowed  to  make  the  payment,  and  that  in  the 
receipt  it  shall  be  declared  that  the  payment  has  been  made  with  the 
moneys  furnished  for  that  purpose  by  the  new  creditor.  Such  subrogation 
takes  place  independently  of  the  wish  of  the  creditor." 

1251.    "Subrogation  takes  place  by  right: 

"i.  For  the  benefit  of  the  person  who,  being  himself  a  creditor  pays 
another  creditor,  who  is  preferred  to  him  on  account  of  his  privileges 
or  mortgages; 

"2.  For  the  benefit  of  the  purchaser  of  a  piece  of  real  estate  who  applies 
the  price  of  his  purchase  to  the  payment  of  the  creditors  to  whom  this 
hereditament  was  mortgaged; 

"3.  For  the  benefit  of  the  person  who,  being  bound  with  others  or  for 
others  to  the  payment  of  the  debt,  had  an  interest  in  satisfying  it; 

"4.  For  the  benefit  of  the  heir  with  benefit  of  inventory  who  has  paid 
with  his  moneys  the  debts  of  the  succession." 

A  debtor  has  the  right  to  appropriate  his  payment  to  such  debt  as  he 
means  to  discharge  and  may  relieve  himself  from  an  obligation  by  a 
tender  and  "consignation,"  that  is  a  deposit  of  the  thing  tendered  and 
notice  of  the  time  and  place  of  making  the  deposit. 

1265.  "An  assignment  of  property  is  the  abandonment  made  by  a  debtor 
of  all  his  property  in  favour  of  his  creditors  when  he  finds  himself  unable 
to  pay  his  debts." 

1266.  "A  voluntary  assignment  of  property  is  one  which  creditors  accept 
voluntarily  and  which  has  no  other  effect  than  the  one  resulting  from  the 
very  conditions  of  the  contract  entered  into  between  them  and  the  debtor." 

1268.  "A  judicial  assignment  is  an  advantage  which  the  law  grants  to  a 
debtor   who  has  been  unfortunate   and  has   acted   in  good   faith;   he  is 


CIVIL  CODE  OF  FRA/NCE  1129 

allowed  to  make  in  court  to  his  creditors  the  abandonment  of  all  his 
property,  notwithstanding  any  stipulation  to  the  contrary,  for  the  purpose 
of  securing  the  liberty  of  his  person." 

1270.  "Creditors  cannot  refuse  a  judicial  assignment  outside  of  the 
cases  excepted  by  law. 

"The  assignment  carries  with  it  the  release  of  the  execution  against  the 
person. 

"Otherwise,  it  only  releases  the  debtor  to  the  extent  of  the  value  of 
the  property  abandoned;  and  in  case  such  property  is  insufficient,  if  he 
acquires  more  property  he  is  obliged  to  abandon  it  until  full  payment  has 
been  made." 

1271.  "Novation  takes  place  in  three  ways : 

"j.  When  the  debtor  contracts  towards  his  creditors  a  new  debt  which 
is  substituted  for  the  old  one,  and  extinguishes  it; 

"2.  When  a  new  debtor  is  sustained  for  the  old  one,  who  is  released 
by  the  creditor; 

"3.  When,  owing  to  a  new  agreement,  a  new  creditor  is  sufbstituted  for 
the  old  one,  as  to  whom  the  debtor  is  released." 

1282.  "A  voluntary  surrender  of  an  original  instrument  under  private 
signature  by  a  creditor  to  a  debtor  is  proof  of  release." 

Various  rules  of  evidence  of  contracts  and  payments  are  stated. 
Written  instruments  are  classified  as  public,  made  by  a  public  officer,  or 
private,  made  by  the  parties. 

1326.  "A  note  or  a  promise  under  private  signature  by  which  a  single 
party  binds  himself  to  another  to  pay  a  sum  of  money  or  an  appreciable 
thing,  must  be  wholly  written  in  the  hand  of  the  person  who  signs  it, 
or  at  least,  it  is  necessary  that,  besides  his  signature,  he  should  have 
written  in  his  own  hand  Good  for,  or  Approved,  with  the  sum  or  the 
quantity  of  the  thing  written  out  in  full; 

"Except  in  case  the  instrument  emanates  from  traders,  workmen,  farm 
laborers,  vine-dressers,  laborers  hired  by  the  day,  and  servants." 

1329.  "The  books  of  merchants  shall  not  be  taken  as  proof  against 
persons  who  are  not  traders  for  the  articles  therein  mentioned,  with  the 
exception  of  what  is  stated  with  respect  to  oaths." 

^330.  "The  books  of  merchants  shall  be  held  as  proof  against  themselves, 
but  the  person  who  wishes  to  derive  an  advantage  from  them  cannot 
divide  them  as  to  the  contents  which  may  be  in  opposition  to  his  claim." 

1341.  "It  shall  be  necessary  to  execute  an  instrument  drawn  up  in  the 
presence  of  notaries  or  made  under  private  signature  for  all  things  of 
which  the  sum  or  value  exceeds  one  hundred  and  fifty  francs,  even  in 
case  of  a  voluntary  deposit,  and  no  proof  of  witnesses  in  favour  or  against 
the  contents  of  the  instrument,  nor  as  to  what  is  alleged  to  have  been 
said  previously,  at  the  time,  or  since  the  making  of  the  same,  shall  be 
allowed,  even  if  the  sum  or  value  in  dispute  is  less  than  one  hundred  and 
fifty  francs : 


II30  APPENDIX 

"All  of  which  is  without  prejudice  to  what  is  mentioned  in  the  laws 
relating  to  commerce." 

1357.  "Judicial  oaths  are  of  two  kinds : 

"i.  Those  which  one  of  the  parties  proffers  to  the  other  to  make  the 
judgment  in  the  case  depend  upon  them.    They  are  called  decisive  oaths; 

"2.  Those  which  are  proffered  by  the  Judge  of  his  own  accord  to  either 
of  the  parties." 

1358.  "A  decisive  oath  can  be  proffered  in  all  kinds  of  controversies 
whatsoever." 

1359-  "It  can  only  be  proffered  with  respect  to  a  fact  which  is  personal 
to  the  party  to  whom  it  is  proffered." 

1360.  "It  can  be  proffered  at  all  stages  of  the  case,  and  even  if  there 
does  not  exist  a  commencement  of  proof  of  the  claim,  or  of  the  exception 
in  connection  with  which  it  is  proffered." 

1361.  "A  person  to  whom  an  oath  is  proffered  and  who  refuses  to  take 
it,  or  who  does  not  consent  to  have  it  taken  by  his  opponent,  or  an 
opponent  to  whom  it  has  been  left  to  take  the  oath  and  who  refuses  to 
take  it,  shall  be  defeated  in  his  claim  or  in  his  exception." 

1366.  "A  Judge  may  proffer  an  oath  to  one  of  the  parties,  either  to 
make  the  decision  of  the  case  result  from  it,  or  only  to  fix  the  amount 
of  the  judgment." 

1367.  "A  Judge  can  only  of  his  own  accord  proffer  an  oath,  either 
upon  the  claim  or  upon  the  exception  set  up,  under  the  two  following 
conditions;  it  is  necessary: 

"i.     That  the  claim  of  the  exception  should  not  be  fully  established: 

"2.    That  it  should  not  be  wholly  without  proof, 

"Outside  of  these  two  cases  the  Judge  must  either  admit  or  reject  the 
claim  absolutely." 

1371-  "Quasi-contracts  are  the  purely  voluntary  acts  of  an  individual 
from  which  a  certain  agreement  results  in  favour  of  a  third  party,  and 
sometimes  a  reciprocal  agreement  between  two  parties." 

1377.  "When  a  person  thought  by  mistake  he  owed  a  debt  and  has  paid 
it,  he  has  the  right  to  claim  it  back  from  the  creditor. 

"Nevertheless,  this  right  ceases  in'  case  the  creditor  has  suppressed  his 
written  proof  in  consequence  of  the  payment,  subject  to  the  remedy  of 
the  person  who  has  paid  against  the  real  debtor." 

1383.  "Every  one  is  responsible  for  the  injury  which  he  has  caused 
not  only  owing  to  his  own  act,  but  owing  to  his  negligence  or  his 
imprudence." 

Father  and  mother  are  liable  for  injuries  caused  by  their  minor  children; 
masters  and  employers  for  those  by  their  servants,  and  schoolmasters  and 
mechanics  for  those  of  their  pupils^  and  apprentices. 

1385.  "The  owner  of  an  animal,  or  the  person  who  uses  it  while  he  has 
the  use  of  it,  is  liable  for  the  injuries  which  the  animal  has  caused,  whether 
the  animal  was  under  his  care  or  whether  it  was  lost  or  got  loose." 


CIVIL  CODE  OF  FRAXXE  1131 

1386.  "The  owner  of  a  building  is  responsible  for  the  injuries  caused 
by  its  destruction  when  such  destruction  has  taken  place  owing  to  his 
not   keeping   it   in   good    order    or   owing   to   bad    construction," 

Title  Fifth  is  "Of  Marriage  Contracts  and  the  respective  rights  of 
husband   and   wife." 

1387.  "The  law  only  regulates  conjugal  relations  with  respect  to  prop- 
erty when  there  is  no  special  agreement,  but  the  husband  and  wife  may 
enter  into  any  agreement  they  deem  proper,  provided  it  is  not  contrary 
to   good   morals,   and   besides,    is    subject   to   the   following  restrictions." 

1388.  "A  husband  and  wife  cannot  derogate  from  the  rights  resulting 
from  the  husband's  marital  powers  over  the  person  of  the  wife  and 
of  the  children  or  which  belong  to  the  husband  as  head  of  the  family, 
nor  from  the  rights  conferred  upon  the  survivor  of  the  husband  or 
wife  under  the  Title  Of  Paternal  Authority  and  the  Title  Of  Minority, 
of  Guardianship  and  of  Emancipation,  nor  from  the  prohibitory 
provisions  of  the  present  code." 

1389.  "They  cannot  make  any  agreement  or  renunciation  of  which  the 
object  would  be  to  change  the  legal  order  of  succession,  either  with 
respect  to  themselves  in  the  succession  of  their  children  or  descendants 
or  with  respect  to  their  children  among  themselves;  without  prejudice 
to  the  donations  inter  vivos  or  mortis  causa  which  may  be  made  according 
to  the  manner  and  in  the  cases  provided  for  in  the  present  Code." 

They  may  in  a  general  manner  declare  that  they  intend  to  marry 
under  the  system  of  community  or  under  the  dotal  system.  Community 
property  includes  all  personal  property  of  the  parties  owned  at  the  time  of 
the  marriage  and  all  real  and  personal  property  acquired  afterward. 
It  does  not  include  the  real  property  owned  by  either  at  the  time  of 
marriage.  The  community  is  liable  for  the  debts  of  each  existing  at 
the  time  of  the  marriage,  but  such  as  are  liens  on  the  lands  of  one 
of  them  are  chargeable  against  his  or  her  share.  Lands  donated  to  or 
inherited  by  one  during  the  marriage  do  not  belong  to  the  community, 
nor  do  those  taken  in  exchange  for  the  property  of  one  of  them.  The 
community  is  liable  for  all  personal  debts  of  each  existing  at  the  time 
of  the  marriage,  for  all  subsequently  contracted  by  the  husband  or  by 
the    wife    with    his    consent    and    for    all    family    expenses. 

1421.  "The  husband  has  the  sole  management  of  community  property. 
"He  can  sell,  convey,  and  mortgage  it  without  the  co-operation  of  his 

wife." 

1422.  "He  cannot  dispose  inter  vivos  of  the  real  estate  belonging  to 
the  community,  nor  of  the  whole  or  part  of  the  personal  property,  with- 
out consideration,  unless  it  is  for  the  establishment  of  children  of  the 
marriage. 

"Nevertheless,  he  may  dispose,  without  consideration  and  specifically, 
of  the  personal  property  in  favour  of  all  persons,  provided  he  does  not 
retain  the  usufruct  for  himself." 


1132  APPENDIX 

The  husband  also  has  the  management  of  the  individual  property 
of  the  wife. 

1441.     "The  community   is   dissolved: 

1.  By  natural  death; 

2.  By  civil  death; 

3.  By   divorce; 

4.  By  separation  from  bed  and  board; 

5.  By  separation  of  property." 

1453.  "After  the  dissolution  of  the  community  the  wife  or  her  heirs 
and  legal  representatives  have  the  right  to  accept  or  renounce  it:  any 
agreement    to    the    contrary    is    void." 

1454.  "A  wife  who  has  interfered  with  the  property  of  the  community 
cannot  renonunce  the  community. 

"Acts  of  pure  administration  or  preservation  do  not  amount  to  an 
interference." 

After  the  dissolution  of  the  community  husband  and  wife  must  each 
return  to  the  community  such  property  or  sums  as  they  owe  by  way 
of  compensation  for  encumbrances  discharged  or  to  endow  a  child,  and 
may  take  out  individual  property  and  the  price  of  his  or  her  real  estate 
sold  and  used  for  the  community.  The  surplus  after  payment  of  debts 
is  then  divided  equally  between  husband  and  wife.  A  wife  is  only 
liable  for  the  debts  of  the  community  to  the  extent  of  her  share  of 
the  community  property.  The  husband  is  liable  for  all  debts  contracted 
by  him,  but  only  for  one  half  the  personal  debts  of  the  wife. 

1492.  "The  wife  who  renounces  loses  all  her  rights  to  the  property 
of  the  community  and  even  to  the  personal  property  which  has  become 
part  of  it  through  her. 

"She  only  takes  back  the  clothes  and  linen  for  her  own  use." 

1493.  "The  wife  who  renounces  has  the  right  to  take  back: 

"i.  The  real  estate  belonging  to  her  when  it  exists  in  kind,  or  the 
real   estate   which   has   been   purchased   as   a   reinvestment; 

"2.  The  proceeds  of  the  real  estate  belonging  to  her  which  has  been 
conveyed  and  for  which  a  reinvestment  has  not  been  made  and  accepted 
as   above   stated; 

"3.     All  the  indemnities  which  may  be  due  to  her  by  the  community." 

The  husband  and  wife  may  modify  legal  community  by  all  sorts  of 
agreements  not  forbidden  by  law.  This  includes  the  right  to  give  the 
survivor  the  whole  of  the  property  or  to  assign  to  each  or  his  or  her 
heirs  such  unequal  share  as  may  be  agreed  on. 

1536.  "When  the  husband  and  wife  have  stipulated  in  their  marriage 
contract  that  there  would  be  a  separation  of  property  between  them, 
the  wife  retains  the  entire  management  of  her  personal  property  and 
real    estate    and    the    free    enjoyment    of    her    income." 

1537-  "The  husband  and  wife  each  contribute  to  the  household  ex- 
penses  according  to  the   conditions   in  their  contract;   and   if  there  are 


CIVIL  CODE  OF  FRANCE  1133 

none  in  relation  thereto,  the  wife  contributes  to  those  expenses  to  the 
extent  of  one  third  of  her  income." 

1538.  "The  wife  cannot  in  any  case,  nor  in  consequence  of  any  agree- 
ment, convey  her  real  estate  without  the  express  consent  of  her  husband, 
or   in   case   of   his   refusal,   without  being   authorized  by  the   Court. 

"Any  general  consent  given  to  the  wife  to  convey  her  real  estate, 
either  by  marriage  contract  or  since  then,   is  void." 

Chapter  III  is  entitled  "Of  Dotal  System." 

1540.  "Dowry  under  this  system,  as  well  as  under  the  one  provided 
hy  Chapter  II,  is  the  property  which  the  wife  brings  to  the  husband 
to  bear  the  household  expenses." 

1541.  "Everything  the  wife  sets  apart,  or  which  is  given  to  her  by 
marriage  contract,  is  dotal  unless  there  is  an  agreement  to  the  contrary." 

The  husband  has  the  management  of  the  dotal  property,  but  the  mar- 
riage contract  may  give  the  wife  a  right  to  collect  a  part  of  her  income 
on  her  own  receipt.  Real  estate  given  as  dowry  cannot  be  conveyed 
or  mortgaged  during  the  marriage,  except  for  the  establishment  of 
the  wife's  children  or  when  it  is  necessary  to  release  husband  or  wife 
from  prison,  furnish  support  for  the  family,  or  make  heavy  repairs, 
•or  to  effect  a  division  or  pay  the  debts  of  the  donor  contracted  previous 
to  the  marriage. 

1557.  "Dotal  real  estate  may  be  conveyed  when  the  marriage  contract 
allows  the  conveyance  thereof." 

1562.  "A  husband,  with  respect  to  dotal  property,  is  subject  to  all 
the  obligations  of  a  usufructuary. 

"He  is  liable  for  all  prescriptions  which  have  taken-  effect  and  for 
any  waste  resulting  from  his  negligence." 

On  the  dissolution  of  the  marriage  the  wife  is  entitled  to  the  dotal 
property  if  she  survives,  and  her  heirs  take  it  in  case  of  her  death, 

1574.  "All  the  property  of  the  wife  which  has  not  been  included  in 
the  settlement  of  dowry  is  paraphernal." 

1575.  "If  all  the  wife's  property  is  paraphernal,  and  if  there  are  no 
provisions  in  the  contract  to  make  her  contribute  to  a  part  of  the 
household  expenses,  the  wife  contributes  thereto  to  the  extent  of  one- 
third  of  her  income." 

1576.  "The  wife  has  the  management  and  enjoyment  of  her  paraphernal 
property. 

"But  she  cannot  convey  it  or  appear  in  court  in  connection  with  the 
same  without  the  consent  of  her  husband,  or  upon  his  refusal,  without 
the  authorization  of  the  Court." 

When  the  marriage  is  under  the  dotal  system  the  parties  may  agree 
to  a  partnership  in  after  acquired  property.  The  subject  of  marriage 
contracts  and  rights  of  husband  and  wife  is  given  great  prominence 
and  occupies  forty-eight  pages  of  this  code,  while  in  the  statutes  of 
England  and  the  states  of  the  American  Union  very  little  space  is  devoted 
to  it. 


1 134  APPENDIX 

The  Sixth  Title  of  the  third  book  treats  of  sales.  The  rules  given; 
are  in  main  merely  clear  statements  of  the  generally  accepted  principles 
applicable  to  sales  of  property.  There  are  some  peculiar  provisions 
however. 

1626.  "Although  no  stipulation  as  to  warranty  has  been  made  upon 
the  sale  of  property,  the  vendor  is  in  duty  bound  to  warrant  the  pur- 
chaser against  the  ejectment  which  he  is  subject  to  from  the  whole 
or  part  of  the  property  sold  or  against  the  alleged  charges  upon  such 
property  which  have  not  been  declared  at  the  time  of  the  sale." 

1627.  "The  parties  may,  by  special  agreement,  add  to  this  obligation^ 
which  exists  by  right,  or  reduce  its  effect:  they  may  even  agree  that  the 
vendor  shall  not  be  subject  to  any  warranty." 

1641.  "A  vendor  is  bound  to  warrant  against  the  hidden  defects  of 
the  thing  sold  which  render  it  unfit  for  the  use  for  which  it  was 
intended,  or  which  impair  its  use  to  such  an  extent  that  the  purchaser 
would  not  have  acquired  it  or  would  only  have  given  a  smaller  price 
if  he  had  known  of  them." 

1642.  "A  vendor  is  not  responsible  for  the  apparent  defects  as  to- 
which  the  purchaser  has  been  able  to  satisfy  himself." 

1654.  "If  the  purchaser  does  not  pay  the  price,  the  vendor  may  ask 
for  the  cancellation  of  the  sale." 

1659.  "The  right  of  redemption  or  repurchase  is  a  covenant  by  which 
the  vendor  retains  the  power  of  taking  back  the  thing  sold  by  returning 
the  purchase  price  and  reimbursing  what  is  specified  in  article  1673." 

1660.  "The  right  of  redemption  cannot  be  stipulated  for  a  period 
exceeding  five  years. 

"If  it  has  been  stipulated  for  a  longer  time  it  is  reduced  to  that  period." 

1674.  "If  the  vendor  has  suffered  a  loss  of  more  than  seven-twelfths 
of  the  price  of  real  estate,  he  has  the  right  to  apply  for  the  rescission 
of  the  sale,  even  if  he  has  expressly  renounced  in  the  contract  the  right 
to  ask  for  such  rescission  and  has  declared  that  he  abandoned  any 
increase  in  the  value." 

1683.  ''Rescission  for  leison  does  not  take  place  in  favour  of  the 
purchaser." 

1689.  "In  an  assignment  of  a  claim,  of  a  right,  or  of  an  action  against 
a  third  party  the  delivery  takes  place  between  the  assignor  and  the 
assignee  by  handing  over  the  instrument." 

1682.  "The  sale  or  assignment  of  a  claim  includes  the  accessories 
of   the    claim,    such    as    the    security,    the   privileges    and    mortgages." 

1693.  "A  person  who  sells  a  claim  or  any  other  incorporeal  right 
must  warrant  its  existence  at  the  time  of  the  assignment,  though  no 
warranty  has  been  stipulated." 

1699.  "A  person  against  whom  a  contested  claim  has  been  assigned 
can  cause  himself  to  be  released  therefrom  by  the  assignee  by  reim- 
bursing  to   him   the   actual   price   of   the   assignment,   with   the   expenses 


CIVIL  CODE  OF  FRANCE  1135 

and  just  charges  and  interest,  from  the  day  the  assignee  paid  the 
price  of  the  assignment  made  to  him." 

The  Seventh  Title  is  "Of  Exchanges." 

1700.  "Rescission  on  account  of  lesion  does  not  take  place  in  contracts 
of   exchange." 

1707.  "All  the  other  rules  set  down  for  contracts  of  sale  shall  moreover 
apply  to  exchanges." 

Title  Eighth  is  "Of  Contracts  of  Letting." 

1713.  "One  may  let  all  kinds  of  personal  property  or  real  estate." 

17 14.  "Letting  can  be  done  in  writing  or  verbally." 

1717.  "The  lessee  has  the  right  to  sublet  or  even  to  assign  his  lease 
to  another  person  if  this  right  has  not  been  taken  away  from  him. 

"It  can  be  taken  away  wholly  or  in  part. 

"This  clause  is  always  necessary." 

1719.  "A  lessor  is  bound  by  the  nature  of  the  contract  and  without  any 
special  stipulation  being  required: 

1.  "To  deliver  to  the  lessee  the  property  leased; 

2.  "To  keep  the  property  in  good  order  so  that  it  can  be  applied  to  the 
use   for  which   it  has   been   let; 

3.  "To  secure  to  the  tenant  the  peaceful  enjoyment  thereof  during  the 
continuance  of  the  lease." 

1728.    *'A    lessee    is   bound   to   two   principal    obligations : 

1.  To  make  usfc  of  the  property  leased  as  a  prudent  owner,  and  ac- 
cording to  the  purposes  intended  by  the  lease,  or  according  to  those 
presumed  under  the  circumstances  if  there  is  no  agreement  to  that  effect; 

2.  "To  pay  the  price  of  the  lease  at  the  times  agreed  upon." 
^733-  "He  is  responsible  in  case  of  fire  unless  he  proves: 

"That  the  fire  has  taken  place  by  accident  or  superior  force  or  owing 
to   bad   construction; 

"Or  that  the  fire  has  spread  from  a  neighboring  house." 

1763.  "A  person  who  cultivates  land  under  condition  of  a  division  of 
the  revenue  with  the  lessor  cannot  sub-let  or  assign  his  lease  unless  such 
power  has  been  expressly  granted  to  him  therein." 

1764.  "In  case  of  violation  of  such  a  condition,  the  owner  has  the 
right  to  re-enter  into  possession  and  the  lessee  shall  be  ordered  to 
pay  the   damages   resulting   from  the  non-performance  of  the  lease." 

1769.  "If  the  lease  is  made  for  several  years  and  during  the  lease  the 
whole  or  at  least  the  half  of  a  crop  has  been  destroyed  accidentally, 
the  farmer  can  ask  for  a  reduction  of  the  price  of  the  lease  unless  his 
loss  is  made  up  by  previous  crops. 

"If  the  loss  has  not  been  made  up,  an  appraisal  of  the  reduction  can 
only  be  made  at  the  end  of  the  lease,  at  which  time  an  average  shall 
be  taken  of  all  the  years  of  his  occupancy. 

"Nevertheless,  the  judge  may  temporarily  exempt  the  lessee  from  paying 
a  part  of  the  price  in  consequence  of  the  loss  he  has  sustained." 


1 136  APPENDIX 

1770.  "If  the  lease  is  only  for  one  year  and  the  loss  is  of  the  whole 
crop  or  at  least  of  one-half,  the  lessee  shall  be  released  from  the  payment 
of  a  proportionate  part  of  the  price  of  the  lease. 

He  cannot  claim  any  reduction  if  the  loss  is  less  than  one-half." 

Under  this  title  are  also  included  contracts  for  personal  service.  A 
person  can  only  bind  himself  to  serve  for  a  certain  time  or  special 
enterprise.  Where  no  time  is  fixed,  either  party  may  terminate  the  service 
at  pleasure.     The  Code  Napoleon  contains  the  following; 

1781.    "A   master   shall   be   believed   upon   his   affirmation: 

"As  to  the  amount  of  the  wages; 

"As  to  the  payment  of  the  salary  for  the  year  elapsed; 

"And  as  to  the  instalments  paid  for  the  current  year." 

But  this  was  repealed  in   1868. 

Common  carriers  are  subject  generally  to  the  same  liabilities  as  inn- 
keepers for  property  intrusted  to  them  and  are  responsible  for  its  loss 
unless  occasioned  by  accident  or  superior  force.  Workmen  entrusted 
with  materials  are  liable  for  losses  resulting  from  their  negligence,  and 
lose  labor  and  materials  furnished  by  them  where  the  property  is 
accidentally  destroyed  before  notice  that  the  article  is  ready  for  delivery. 

1792.  "If  the  building  constructed  for  a  given  price  is  destroyed,  wholly 
or  in  part,  owing  to  bad  construction  or  even  to  some  defect  of  the 
soil,  the  architect  and  the  contractor  are  responsible  for  ten  years." 

1794.  "An  employer  may  of  his  own  accord  cancel,  a  job  which  has 
been  undertaken,  even  if  the  work  has  been  already  commenced,  by 
compensating  the  contractor  for  all  his  expenses,  his  work  and  all  he 
might   have   earned   in   such   enterprise." 

1795.  "A  contract  for  the  letting  of  work  expires  by  the  death  of  the 
workman,  the  architect  or  the  contractor." 

Chapter  4  of  this  title  relates  to  leases  of  cattle.  Where  there  is  a 
simple  lease  on  equal  shares,  if  all  the  cattle  die  the  loss  falls  on  the 
lessor,    if   only   part   the   loss    is    divided. 

181 1.    "It   cannot  be  agreed: 

"That  the  lessee  shall  bear  the  total  loss  of  the  cattle,  although  it 
occured  by  accident  and  not  through  his  negligence; 

"Or  that  he  shall  bear  a  larger  part  of  the  losses  than  of  the  profits : 

"Or  that  the  lessor,  at  the  end  of  the  lease,  shall  be  entitled  to  some- 
thing more  than  the  cattle  have  produced. 

"i\ny  agreement  of  this  kind  is  void. 

The  lessee  has  the  sole  benefit  of  the  milk,  the  manure,  and  the  labour 
of  the  cattle  leased. 

"The  wool  and  the  growth  of  the  cattle  are  divided." 

Other  forms  of  letting  cattle  on  shares  and  in  connection  with  leases 
of  farms  are  provided  for. 

Title  Ninth  is  "Of  Contracts  of  Patnership." 

1834.  "Every  partnership  must  be  made  in  writing,  if  it  is  for  an 
object  of  which  the  value  exceeds  one  hundred  and  fifty  francs. 


CIVIL  CODE  OF  FRANXE  1137 

"No  oral  testimony  shall  be  admitted  against  or  beyond  the  contents 
of  the  articles  of  co-partnership,  nor  as  to  what  might  be  alleged  to  have 
been  said  previously  to  the  same  or  at  the  time  therefor  or  since  then, 
even  in  case  of  a  sum  or  value  less  than  one  hundred  and  fifty  francs." 

Partnerships  are  divided  into  general  and  particular.  General  part- 
nerships include  those  by  which  all  of  the  property  of  the  partners 
and  the  profits  therefrom  are  placed  in  common  and  those  where  the 
earnings  of  the  parties  by  their  work  are  in  common. 

1841.  "A  particular  partnership  is  one  which  only  applies  to  certain 
specified  things  or  to  their  use  or  to  the  revenue  to  be  gathered  therefrom.'* 

1842.  "A  contract  by  which  several  persons  become  partners,  either  for 
a  specified  enterprise  or  for  carrying  on  a  trade  or  profession,  is  also 
a  particular   partnership." 

1850.  "Each  partner  is  liable  to  the  partnership  for  the  damages 
occasioned  by  his  negligence,  and  he  cannot  offset  such  damages  against 
the  profits  which  his  work  has  brought  him  in  connection  with  other 
business." 

Most  of  the  other  rules  accord  with  the  general  principles  ordinarily 
recognized  as  to  the  rights  and  obligations  of  partners.  When  the  shares 
of  profits  and  losses  are  not  fixed  by  contract  they  are  divided  in 
proportion  to  the  capital  contributed  by  each.  When  one  partner  is  given 
the  management  by  the  articles  of  partnership  he  may  act  notwithstand- 
ing the  objections  of  his  partners,  but  in  partnerships  not  commercial 
the  partners  are  not  liable  for  the  debts  jointly  but  only  for  their  equal 
shares.  The  rules  with  reference  to  the  dissolution  of  partnerships  are 
similar  to  those  of  the  common  law. 

Title  Tenth  is  "Of  Loans." 

A  loan  of  a  thing  for  use  and  return  to  the  owner  is  called  a 
commodatum.  The  borrower  is  liable  for  its  loss  or  injury  due  to  his 
fault,  but  not  otherwise.  Loans  for  consumption  lare  contracts  by 
which  the  specified  property  is  to  be  consumed  and  the  same  kind  and 
quantity  returned.  The  borrower  becomes  the  owner  and  any  loss  falls 
on  him.  In  case  return  of  like  property  cannot  be  made  the  borrower 
must  pay  the  value  at  the  time  when  and  place  where  the  thing  was  to  be 
returned. 

Title  Eleventh  is  "Of  Deposits  and  Sequestration." 

1924.  "When  a  deposit,  being  for  more  than  one  hundred  and  fifty 
francs,  is  not  established  by  a  writing,  the  person  who  is  attacked  as 
depositary  is  believed  on  his  declaration,  either  as  to  the  fact  itself  of 
the  deposit,  or  the  thing  which  formed  the  object  thereof,  or  as  to  the  fact 
of  its  restitution." 

1927.  "A  depositary  must  bestow  the  same  care  in  watching  over 
the  thing  which  is  deposited  as  he  bestows  upon  the  things  which  belong 
to  him." 

1929.     "A   depositary  is  not  in  any  case  answerable   for  the  accidents 


1 138  APPENDIX 

resulting   from   superior   force,   unless   notice   has   been  given   to  him  to 
return  the  thing  deposited." 
He  must  return  the  identical  thing  deposited. 

1949,  "An  obligatory  deposit  is  one  which  was  compulsory  owing  to 
some  accident,  such  as  a  fire,  complete  destruction,  pillage,  shipwreck, 
or  other  unforeseen  levents." 

1950.  "Proof  by  witnesses  is  allowed  in  case  of  an  obligatory  deposit 
even  if  the  amount  involved  exceeds  one  hundred  and  fifty  francs." 

1952.  "Innkeepers  or  hotelkeepers  are  responsible  as  depositaries  for 
the  effects  brought  by  the  traveller  who  is  stopping  with  them;  a  deposit 
of  such  kinds  of  effects  shall  be  considered  as  an  obligatory  deposit." 

They  are  responsible  for  thefts  of  the  effects  of  travelers,  but  not  for 
robberies  or  taking  by  superior  force. 

1955-     "Sequestration  is  either  conventional  or  judicial." 

1956.  "Conventional  sequestration  is  a  deposit  made  by  one  or  several 
persons  of  a  thing  in  dispute  in  the  hands  of  a  third  party  who  binds 
himself  to  return  it  after  the  controversy  is  over  to  the  person  who  shall 
obtain  it  by  judgment." 

1961.     "Sequestration  may  be  ordered  by  a  Court: 

1.  In  case  of  personal  property  of  a  debtor  which  has  been  attached; 

2.  In  case  the  ownership  or  possession  of  real  estate  or  personal 
property  is  in  dispute  between  two  or  more  persons; 

3.  In  case  the  debtor  offers  certain  things  for  his  release." 

Title  Twelfth  is  "Of  contingent  Contracts."  These  are  classified  as : 
Insurance  Contracts,  Loans  on  Bottomry,  Gaming  and  Betting  and 
Annuities. 

1965.  "The  law  does  not  grant  any  action  for  a  gaming  debt  or  for 
the  payment  of  a  bet." 

.  1966.  "Games  which  tend  to  promote  skill  in  the  use  of  arms,  races 
on  foot  or  on  horseback,  tennis  and  other  games  of  the  same  kind  which 
develop  skill  and  promote  physical  exercise,  are  excepted  from  the  fore- 
going provisions. 

"Nevertheless  the  Tribunal  can  dismiss  the  case  when  the  sum  seems 
excessive." 

1967.  "In  no  case  can  the  loser  claim  back  what  he  has  voluntarily  paid, 
unless  there  has  been  fraud,  deceit  or  swindling  on  the  part  of  the  winner." 

1968.  "An  annuity  may  be  granted  for  a  consideration  in  money,  or 
for  an  article  of  personal  property  of  some  value,  or  for  real  estate." 

1969.  "It  can  also  be  granted,  without  consideration,  by  donation 
inter  vivos,  or  by  will.  It  must  then  be  made  in  the  form  provided  by 
law." 

1971.  "An  annuity  may  be  made  either  in  favour  of  the  person  who 
furnishes  the  value  thereof,  or  in  favour  of  a  third  party  who  only  has 
a  right  of  enjoyment  of  the  same." 


CiVIL  CODE  OF  FRANXE,  1139 

Title  Thirteenth  is  "Of  Powers  of  Attorney." 

1985.  "A  power  of  attorney  can  be  given  either  by  a  public  instrument 
•or  by  a  writing  under  private  signature,  even  by  letter.  It  can  also  be 
given  verbally :  but  the  proof  thereof  by  witness  is  only  admitted  in 
accordance  with  the  Title  Of  Contracts,  or  Conventional  Obligations  in 
General. 

"The  acceptance  of  the  power  may  only  be  tacit,  and  result  from  the 
acting  thereunder  of  the  attorney-in-fact." 

1991.  "An  attorney-in-fact  is  bound  to  carry  out  the  power,  so  long 
as  he  has  charge  of  acting  under  it,  and  he  is  responsible  for  the  dam- 
ages which  might  result  from  his  failure  to  act. 

"He  is  also  bound  to  finish  a  matter  commenced  at  the  death  of  the 
principal  if  delay  would  be  prejudicial," 

1902.  "An  attorney-in-fact  is  answerable  not  only  in  case  of  fraud, 
but  also  for  negligence  in  his  management. 

"Nevertheless,  the  responsibility  in  case  of  negligence  is  enforced  less 
rigorously  against  a  person  who  has  acted  without  compensation  under 
a  power  than  against  one  receiving  a  salary." 

1998.  "A  principal  is  bound  to  carry  out  the  engagements  contracted 
by  the  attorney-in-fact  in  accordance  with  the  power  which  he  has 
given  him. 

"He  is  only  bound  for  what  may  have  been  done  beyond  it  in  case  of 
his  express  or  tacit  ratification." 

2003.  "A  power  of  attorney  expires  by  the  revocation  of  the  attorney- 
in-fact  ; 

By  his  renunciation  of  the  power; 

By  the  natural  or  civil  death,  the  interdiction  or  the  insolvency  either 
of  the  principal  or  of  the  attorney-in-fact." 

Title  Fourteenth  is  "Of  Security." 

2011.  "A  person  who  answers  as  surety  for  an  obligation  undertakes 
with  respect  to  the  creditor  to  satisfy  this  obligation  if  the  debtor  does 
not  satisfy  it  himself." 

2013.  "The  security  cannot  exceed  what  is  due  by  the  debtor,  nor  be 
given  under  more  rigorous  conditions. 

It  can  be  given  for  a  part  of  the  debt,  and  under  less  rigorous  conditions. 

"The  security  which  exceeds  the  debt  or  which  is  given  under  more 
rigorous  conditions  is  not  void:  it  shall  only  be  cut  down  to  the  amount 
of  the  principal  obligation." 

2021.  "A  surety  is  only  bound  towards  the  creditor  to  pay  him  if  the 
debtor  fails  to  do  so,  and  the  latter's  property  must  previously  be  seized, 
unless  the  surety  has  renounced  the  benefit  of  seizure,  or  unless  he  has 
bound  himself  jointly  and  severally  with  the  debtor ;  in  which  case  the 
effects  of  his  undertaking  are  regfllated  by  the  principles  which  have  been 
established  for  debts  jointly  and  severally  due." 


II40  APPENDIX 

But  the  creditor  is  only  bound  to  seize  the  property  of  the  principal 
when  the  surety  demands  it,  points  out  the  property  and  advances  the 
costs. 

2029.  **A  surety  who  has  paid  the  debt  is  subrogated  to  all  the  rights 
which  the  creditor  had  against  the  debtor." 

2032.  "A  surety  even  before  he  has  paid,  can  proceed  against  the 
debtor  to  be  indemnified : 

1.  When  such  surety  has  been  sued  in  court  for  payment; 

2.  When  the  debtor  has  become  a  bankrupt,  or  is  insolvent; 

3.  When  the  debtor  has  undertaken  to  give  him  a  release  at  the  end 
of  a  certain  time; 

4.  When  the  debt  has  become  due  by  the  expiration  of  the  time  for 
which  it  had  been  contracted ; 

5.  At  the  end  of  ten  years,  when  no  time  has  been  specified  for  the 
expiration  of  the  principal  obligation,  unless  the  same  is  of  such  a  nature 
as  not  to  expire  before  a  fixed  time,  such  as  a  guardianship." 

2033.  "When  several  persons  have  become  sureties  for  the  same 
debtor  upon  the  same  debt,  the  surety  who  has  paid  the  debt  has  a  claim 
against  all  the  other  sureties  for  the  share  and  portion  of  each  of  them. 

But  this  claim  only  exists  when  the  surety  has  paid  in  one  of  the  cases 
mentioned  in  the  foregoing  article." 

2037.  "A  surety  is  released  when  subrogation  to  the  rights,  mortgages 
and  privileges  of  the  creditor  can  no  longer  take  place  in  favour  of  the 
surety  owing  to  an  act  of  such  creditor." 

2039.  "A  simple  extension  granted  by  a  creditor  to  the  principal 
debtor  does  not  release  the  surety,  who  may  in  such  case  proceed  against 
the  debtor  to  compel  him  to  pay." 

Title  Fifteenth  is  "Of  Compromises." 

2044.  "A  compromise  is  a  contract  by  which  the  parties  put  an  end  to 
a  controversy  which  has  arisen  or  prevent  a  controversy  about  to  arise. 

This  contract  must  be  drawn  up  in  writing." 

2046.  "A  person  can  compromise  as  to  the  civil  interests  resulting 
from  a  misdemeanor. 

"A  compromise  does  not  stop  the  action  brought  by  the  public 
Prosecutor." 

2052.  "Compromises  have,  between  the  parties,  the  effect  of  a  final 
judgment. 

"They  cannot  be  attacked  on  account  of  an  error  of  law,  nor  on  account 
of  injury." 

2058.    "Errors  of  calculation  in  a  compromise  shall  be  corrected." 

Title  Sixteenth  "Of  Executions  Against  the  Person  in  Civil  Matters" 
which  was  a  part  of  the  Code  Napoleon,  was  repealed  in  1867. 

Title  Seventeenth  is  "Of  Pledges." 

2072.  "A  pledge  of  personal  property  is  called  a  pawn;  A  pledge  of 
real  estate  is  called  antichresis." 


CIVIL  CODE  OF  FRANCE  1141 

2073.  "A  pawn  confers  upon  the  creditor  the  right  to  cause  himself 
to  be  paid  out  of  the  thing  pawned  by  way  of  privilege  and  in  preference 
to  other  creditors." 

2078.  "A  creditor  cannot,  in  case  of  non-payment,  dispose  of  a  pawn; 
but  he  must  have  the  Court's  order  that  he  shall  retain  the  pawn  as 
payment  and  to  the  extent  of  its  value,  according  to  an  appraisal  made 
by  experts,  or  that  it  shall  be  sold  at  auction. 

"All  covenants  allowing  a  creditor  to  appropriate  the  pawn,  or  to  dis- 
pose of  it  without  complying  with  the  formalities  above  set  forth,  shall 
be  void." 

2084.  "The  foregoing  provisions  do  not  apply  to  commercial  matters, 
nor  to  pawn  establishments  duly  authorized,  and  as  to  which  the  laws 
and  regulations  relating  to  them  shall  be  followed." 

2085.  "Antichresis  can  only  be  created  by  virtue  of  a  writing. 

"By  such  an  agreement  a  creditor  only  acquires  the  right  to  collect  the 
revenues  of  the  real  estate  on  condition  of  applying  them  annually  to  the 
payment  of  the  interest,  if  any  is  due  to  him,  and  thereafter  to  the  pay- 
ment of  the  capital  of  his  claim." 

The  creditor  is  bound  to  pay  the  taxes  and  keep  the  property  in  repair 
out  of  the  revenue  received  from  it. 

2088.  "A  creditor  does  not  become  the  owner  of  the  real  estate  by  the 
mere  failure  to  pay  at  the  time  agreed  upon;  any  clause  to  the  contrary 
is  void :  in  such  case  he  can  resort  to  legal  measures  to  have  his  debtor 
dispossessed." 

Title  Eighteenth  is  "Of  Privileges  and  Mortgages." 

2095.  "A  privilege  is  the  right  which  the  nature  of  the  claim  gives  to 
a  creditor  to  be  preferred  to  other  creditors,  even  to  mortgagees." 

2101.  "Privileged  claims  on  all  personal  property  generally  are  those 
hereinafter  set  forth,  and  can  be  asserted  in  the  following  order. 

1.  Court  expenses ; 

2.  Funeral  expenses; 

3.  (Amended  by  law  of  30th  November,  1892).  All  expenses  relating  to 
the  last  illness,  pro  rata  among  those  to  whom  they  are  due,  whatever 
may  have  been  its  termination ; 

4.  The  wages  of  servants  for  the  year  elapsed  and  what  is  due  for  the 
current  year; 

5.  Supplies  of  provisions  furnished  to  the  debtor  or  his  family,  viz.: — 
during  the  last  six  months  by  retail  dealers,  such  as  bakers,  butchers  and 
others ;  and  during  the  last  year  by  boarding-house  keepers  and  wholesale 
dealers." 

Privileged  claims  are  allowed  on  certain  articles  of  property;  as  to  a 
landlord  on  the  crops  raised  by  or  furniture  of  the  tenant,  subject  to 
debts  for  seeds  and  implements,  to  the  seller  for  the  price  of  the  thing 
sold  while  in  the  possession  of  the  buyer,  to  an  innkeeper  on  the  effects 
of  his  guests  in  his  inn,  to  a  carrier  for  the  charges  on  the  thing  carried. 


II42  APPEXDIX 

Preferred  creditors  as  to  real  estate  are,  vendors  for  purchase  money, 
those  who  furnish  purchase  money  to  the  buyer.  Architects,  contractors, 
masons  and  other  workmen  for  work  in  constructing  or  repairing  buildings, 
and  one  who  loans  the  money  to  pay  them  for  their  work.  Privileges 
relating  to  real  estate  must  have  been  inscribed  on  the  register  of 
mortgages  with  certain  exceptions. 

21 17.  "Legal  mortgages  are  those  resulting  from  the  law.  Judicial 
mortgages  are  those  resulting  from  judgments  or  judicial  acts.  Conven- 
tional mortgages  are  those  resulting  from  agreements  and  from  the  special 
provisions  of  deeds  and  contracts." 

21118.    "The  following  property  only  can  be  mortgaged: 

1.  'Real  estate  in  trade  and  its  accessories  considered  as  real  estate; 

2.  The  usufruct  of  the  same  property  and  its  accessories  during  the 
time  of  its  duration." 

21 19.    "Personal  property  cannot  be  subject  to  a  mortgage." 

2121.    "The  rights  and  claims  to  which  a  legal  mortgage  is  attached  are : 

Those  of  married  women,  on  the  property  of  their  husbands; 

Those  of  minors  and  interdicted  persons,  on  the  property  of  their 
guardians ; 

Those  of  the  State,  Districts,  and  of  public  establishments,  on  the 
property  of  collectors  and  administrators  who  are  accountable." 

2it22.  "A  creditor  who  has  a  legal  mortgage  can  enforce  his  right  upon 
all  the  real  estate  belonging  to  his  debtor,  and  upon  the  real  estate  which 
may  come  to  him  in  the  future,  subject  to  the  restrictions  hereinafter 
contained." 

A  judicial  mortgage  results  from  a  judgment  in  favor  of  a  party  and 
from  acknowledgments  in  the  judgment  of  signature  to  an  instrument 
containing  an  obligation. 

2124.  "Conventional  mortgages  can  only  be  granted  by  those  who  have 
the  capacity  of  conveying  the  real  estate  which  they  subject  to  them." 

2127.  "A  conventional  mortgage  can  only  be  granted  by  deed  executed 
in  the  public  form  in  the  presence  of  two  notaries  or  of  one  notary  and 
two   witnesses." 

2134.  "A  mortgage,  whether  legal,  judicial,  or  conventional,  only  ranks 
among  creditors  from  the  day  of  the  inscription  which  the  creditor  has 
caused  to  be  made  on  the  registers  of  the  Registrar  in  the  form  and 
manner  directed  by  law,  with  the  exceptions  mentioned  in  the  following 
article." 

Mortgages  exist  independently  of  any  inscription  in  favor  of  minors 
on  lands  of  their  guardian,  of  married  women  for  dowries  and  settle- 
ments on  real  estate  of  their  husbands.  This  is  subject  to  various  ex- 
ceptions and  qualifications  given  at  considerable  length.  Inscriptions 
of  privileges  and  mortgages  are  made  at  the  office  of  the  Registrar  of 
Mortgages. 

2150.     "The  Registrar  enters  on  his  register  the  contents  of  the  state- 


CIVIL  CODE  OF  FRAXCE  1143 

ment  and  hands  to  the  appearer  the  instrument  or  certified  copy  of  the 
same,  and  also  one  of  the  statements,  at  the  foot  of  which  he  certifies  that 
he  has  made  the  inscription." 

2154.  "Inscriptions  keep  the  mortgage  and  the  privilege  alive  for  ten 
years  from  the  day  of  their  date ;  their  effect  ceases  if  these  inscriptions 
have  not  been  renewed  before  the  expiration  of  this  period." 

2157.  "Inscriptions  shall  be  cancelled  by  the  consent  of  the  parties 
interested  and  having  capacity  therefor,  or  by  virtue  of  a  judgment  of 
the  highest  Court,  or  one  which  has  become  final." 

2160.  "Cancellation  must  be  ordered  by  the  Tribunals  when  the  in- 
scription has  been  made  without  being  based  upon  the  law  or  upon  an 
agreement,  or  when  it  has  been  made  upon  an  instrument  which  was 
either  irregular  or  has  come  to  an  end,  or  has  been  satisfied,  or  when  the 
rights  of  privilege  or  mortgage  have  been  wiped  out  by  operation  of 
the  law." 

2166.  "Creditors  who  have  a  privilege  or  mortgage  on  real  estate 
which  has  been  inscribed  follow  the  real  estate  through  whatever  hands 
it  may  pass  and  rank  and  are  paid  according  to  the  rank  of  their  claims  or 
inscriptions." 

2169,  "If  a  third  party  in  possession  fails  to  fully  comply  with  one 
of  these  obligations,  each  mortgagee  has  the  right  to  cause  the  real 
estate  to  be  sold  thirty  days  after  the  service  upon  the  original  debtor 
of  a  demand  and  after  service  upon  the  third  party  in  possession  of  a 
notice  to  pay  the  debt  which  has  become  due  or  to  abandon  the  estate." 

Where  a  purchaser  of  real  estate  wishes  to  free  it  from  privileges  and 
mortgages  he  may  have  his  conveyance  transcribed  on  the  register  of  the 
Registrar  and  give  notice  of  his  purchase  to  the  creditors.  The  creditors 
may  then  take  the  consideration  paid  by  him  to  be  applied  according  to 
priority,  or  any  creditor  may  apply  for  a  public  sale  of  the  property 
deeded.  The  creditor  so  applying  must  consent  to  raise  the  price  one 
tenth  above  the  contract  price.  If  the  purchaser  becomes  the  highest 
bidder  and  pays  more  than  his  contract  calls  for  he  has  a  remedy  over 
against  the  seller  for  the  excess  in  price  which  he  is  compelled  to  pay 
the  creditors.  Registers  are  public  and  any  person  is  entitled  to  a  copy 
of  any  record.  The  Registrars  are  liable  for  omissions  to  record  or 
make  correct  certificates. 

Title  Nineteenth  is  "Of  Compulsory  Ejectment  and  of  Rank  among 
Creditors." 

2204.    "A  creditor  may  sue  for  ejectment : 

I.  From  real  estate  or  its  accessories  deemed  to  be  real  property 
owned  in  fee  by  his  debtor ;  2.  From  the  usufruct  belonging  to  the  debtor 
upon  property  of  the  same  nature." 

2209.  "A  creditor  cannot  sue  to  have  real  estate  which  has  not  been 
mortgaged  to  him  sold,  unless  the  property  mortgaged  to  him  is  of  in- 
sufficient value." 


1 144  AjPPENDIX 

2212.  "If  a  debtor  establishes  by  leases  in  the  public  form  that  the  net 
and  available  revenue  of  his  real  estate  during  one  year  is  sufficient  for 
the  payment  of  the  principal,  interest  and  costs  of  the  debt,  and  if  he  offers 
the  assignment  thereof  to  the  creditor,  the  proceedings  may  be  stayed  by 
the  Judges,  but  may  be  renewed  in  case  of  an  attachment  or  if  some 
other  obstacle  to  the  payment  arises." 

2213.  "A  forced  sale  of  real  estate  can  only  be  applied  for  by  virtue 
of  an  instrument  in  public  form,  and  upon  which  execution  can  be  issued, 
and  for  a  duly  established  and  liquidated  debt.  If  the  debt  is  for  money, 
but  is  not  liquidated,  the  proceedings  are  regular,  but  a  public  sale  can 
only  take  place  after  the  same  has  been  liquidated." 

2215.  "Proceedings  can  result  from  a  provisional  or  final  judgment 
giving  the  right  to  immediate  execution,  notwithstanding  an  appeal;  but 
a  public  sale  can  only  take  place  after  a  final  judgment  of  the  highest 
Court  or  when  a  judgment  has  become  final. 

"Proceedings  cannot  be  instituted  in  consequence  of  a  judgment  by 
default  during  the  time  the  default  can  be  opened." 

Previous  to  all  proceedings  for  ejectment  a  demand  for  the  debt  must 
be  served  on  the  debtor  by  a  sheriff. 

The  Twentieth  and  last  title  is  "Of  Prescriptions." 

2219.  "Prescription  is  a  way  of  acquiring  property  or  of  releasiing 
oneself  at  the  end  of  a  certain  period  of  time  and  under  conditions 
specified  by  law." 

2220.  "A  person  cannot  renounce  prescription  beforehand :  he  can 
renounce  prescription  which  has  taken  effect." 

2225.  "Creditors  or  any  other  persons  whose  interest  it  is  that  pre- 
scription should  have  taken  place  can  set  it  up,  even  if  the  debtor  or 
owner  renounces  it." 

2227.  "The  State,  public  institutions  and  districts  are  subject  to  the 
same  prescriptions  as  private  individuals,  and  can  set  them  up  in  the 
same  manner." 

2228.  "Possession  is  the  retention  or  enjoyment  of  a  thing  or  of  a 
right  which  we  have  and  which  we  make  use  of,  either  ourselves  or  by 
another  person  who  holds  it  or  makes  use  of  it  in  our  name." 

2229.  "In  order  that  prescription  should  take  place  it  is  necessary  to 
have  a  continuous,  uninterrupted,  peaceful,  public  and  unambiguous  pos- 
session in  the  capacity  of  owner." 

2236.  "Those  who  hold  possession  for  third  parties  never  acquire  by  pre- 
scription, whatever  time  may  have  elapsed. 

"Thus,  a  lessee,  a  depositary,  a  usufructuary,  and  all  others  who  hold  the 
property  of  an  owner,  not  as  their  own,  cannot  acquire  it  by  prescription." 

Prescription  is  interrupted  by  loss  of  possession  one  year,  or  a  citation 
to  appear  in  court  by  one  who  wishes  to  prevent  the  prescription  or  by 
an  admission  of  the  right  of  the  adverse  party  by  the  one  in  possession. 
Prescription  does   not  run   against  minors   and   interdicted  persons,   nor 


CIVIL  CODE  OF  FRANCE      .  ii45 

between  husband  and  wife,  nor  against  a  claim  depending  upon  a  con- 
dition till  the  condition  takes  place. 

2260.  "Prescription  is  counted  by  days  and  not  by  hours." 

2261.  "It  takes  effect  when  the  last  day  of  the  period  has  passed." 

A  bona  fide  purchaser  of  real  property  gains  a  good  title  by  ten  years 
possession,  where  the  owner  resides  in  the  district  where  it  is  situated, 
and  in  twenty  years  where  he  resides  outside  the  district.  Suits  for 
wages  are  generally  barred  in  six  months,  for  the  compensation  of  physi- 
cians, surgeons,  dentists,  druggists  and  solicitors,  in  two  years,  for  arrears 
of  annuities,  allowances  for  support,  rent  of  lands  and  interest  on 
loans,  in  five  years.  Other  prescriptions  are  made  by  various  provisions 
of  the  code  and  other  laws. 

It  must  not  be  inferred  that  the  quotations  above  given  contain  all  the 
provisions  on  a  particular  subject  or  that  a  summary  has  been  made  of 
all  matters  of  minor  importance.  The  effort  has  been  merely  to  give 
enough  to  indicate  the  general  frame  of  the  code  and  those  rules  which 
are  peculiar  to  it.  It  contains  many  provisions  taken  from  the  code  of 
Justinian,  yet  the  absence  of  slavery  and  of  the  patria  potestas,  so  im- 
portant in  the  Roman  law,  eliminates  much  of  that  which  was  most 
conspicuous  in  the  laws  of  Justinian.  It  is  in  contrast  with  the  code 
of  China  in  the  fundamental  particular  of  punishments  and  penalties 
and  in  most  other  particulars,  with  the  code  of  Manu  in  the  absence  of 
castes  and  of  religious  dogmas,  and  with  the  laws  of  England  and  the 
United  States,  in  its  provisions  for  records  of  personal  matters,  its  family 
council,  regulation  of  marriage  and  divorce,  marriage  contracts,  wills 
and  donations,  privileges  and  mortgages,  and  other  minor  particulars.  The 
absence  of  all  provisions  concerning  private  corporations,  railroads,  tele- 
graphs, warehouses  and  other  minor  topics  familiar  to  the  English  and 
American  lawyer  is  noticeable.  Procedure  in  the  courts  is  regulated  by  a 
separate  code. 

Note.  The  passages  above  quoted  are  from  the  translation  of  Henry 
Cachard  published  by  Banks  Brothers  in  1895  and  include  amendments 
made  prior  to  that  time. 


THE  CIVIL  CODE  OF  GERMANY 

The  Civil  Code  of  Germany  was  promulgated  by  the  emperor  William 
on  August  i8,  1896,  to  become  in  force  on  January  i,  1900.  It  is  divided 
into  2385  paragraphs  and  the  translation  fills  an  ordinary  octavo  volume  of 
535  pages.  It  is  divided  into  five  books  subdivided  into  Sections,  Titles 
and  numbered  paragraphs. 

The  first  book  contains  "General  Principles";  the  first  Section  treats 
of  Persons,  and  the  first  title  of  Natural  Persons, 

II.  "The  legal  capacity  of  a  human  being  begins  with  the  completion 
of  birth." 

2.  "Majority  begins  with  the  completion  of  the  twenty-first  year  of  age." 

3.  "A  minor  who  has  completed  his  eighteenth  year  of  age  may  be 
declared  of  full  age  by  order  of  the  Guardianship  Court. 

"By  the  declaration  of  majority  the  minor  acquires  the  legal  status  of  a 
person  of  full  age." 

4.  "The  declaration  of  majority  is  permissible  only  if  the  minor  gives 
his  approval.  If  the  minor  is  under  parental  power,  the  approval  of  the 
parent  is  also  necessary,  unless  he  has  neither  the  care  of  the  person 
nor  of  the  property  of  the  child.  For  a  minor  widow  the  approval  of  the 
parent  is  not  necessary." 

5.  "The  declaration  of  majority  should  issue  only  if  it  will  promote 
the  welfare  of  the  minor." 

6.  Provides  for  interdicting  persons  who  are  insane,  feeble-minded, 
prodigal  or  habitual  drunkards. 

The  remaining  paragraphs  of  this  title  prescribe  rules  for  determining 
domicile  and  for  declaring  dead  those  who  have  disappeared,  making 
different  periods  of  time  sufficient  to  raise  a  presumption  of  death  accord- 
ing to  the  difference  in  age  and  circumstances  attending  the  disappearance, 
ranging  from  one  year  in  case  of  persons  disappearing  with  a  vessel  lost  at 
sea  to  ten  years.  "If  several  persons  have  perished  in  a  common  peril 
it  is  presumed  that  they  died  simultaneously." 

The  second  title  treats  of  "Juristic  Persons." 

21.  "An  association  whose  object  is  not  the  carrying  on  of  an  economic 
enterprise,  acquires  juristic  personality  by  registration  in  the  register  of 
associations  of  the  competent  District  Court." 

22.  "An  association  whose  object  is  the  carrying  on  of  an  economic 
enterprise  acquires  juristic  personality,  in  the  absence  of  special  provisions 
of  Imperial  law,  by  grant  from  the  State.  The  power  to  make  such 
grant  belongs  to  the  State  in  whose  territory  the  association  has  its  seat." 

23.  "An  association  whose  seat  is  not  in  any  state  may,  in  the  absence 
of  special  provisions  of  imperial  law,  be  granted  juristic  personality  by 
resolution  of  the  Federal  Council." 

1 146 


CIVIL  CODE  OF  GERMANY    ^  1147 

24.  "Unless  it  is  otherwise  provided,  the  place  where  the  affairs  of  an 
association  are  managed  is  deemed  to  be  its  seat." 

25.  "The  constitution  of  an  association  having  juristic  personality  so 
far  as  it  does  not  depend  on  the  following  provisions,  is  determined  by 
the  articles  of  association." 

2!^.  "The  association  must  have  a  directorate.  The  directorate  must 
consist  of  several  persons. 

"The  directorate  represents  the  association  in  judicial  proceedings  and 
all  other  affairs;  it  is  in  the  position  of  a  statutory  agent.  The  extent 
of  its  representative  authority,  as  against  third  persons,  may  be  limited 
by  the  articles." 

Directors  are  appointed  by  resolution  of  the  members,  and  may  be 
removed  under  certain  limitations.  The  articles  of  association  may  be 
altered  by  resolution  of  three-fourths  of  the  members  present.  A  mem- 
ber's meeting  shall  be  called  on  demand  of  the  prescribed  number  of 
members,  and  the  District  Court  may  authorize  the  call. 

Z^.  "Membership  is  not  transferable,  and  does  not  pass  by  inheritance. 
The  exercise  of  the  right  of  membership  may  not  be  delegated  to  another 
person."  But  the  provisions  of  38  do  not  apply  where  the  articles  provide 
otherwise. 

An  association  may  be  dissolved  hy  resolution  of  three-fourths  of  the 
members,  and  it  loses  juristic  personality  by  the  institution  of  bankruptcy 
proceedings.  Juristic  personality  may  be  withdrawn  for  misconduct.  In 
case  of  dissolution  the  affairs  are  wound  up  by  the  directorate  or  by 
liquidators. 

54.  "Associations  which  have  not  juristic  personality  are  subject  to 
the  provisions  relating  to  partnership.  If  a  member  of  such  an  associa- 
tion, acting  in  the  name  of  the  association,  enters  into  a  juristic  act 
with  a  third  party,  that  member  is  personally  liable;  if  several  members 
so  act,  they  are  liable  as  joint  debtors." 

Registration  of  associations  is  made  in  the  District  Court  where  the 
association  is  not  one  carrying  on  an  economic  enterprise.  The  articles 
of  association  must  be  signed  by  seven  members,  must  state  the  objects, 
name  and  seat  of  the  association,  and  should  also  contain  provisions 
containing  the  admission  and  withdrawal  of  members,  the  contributions 
made  by  them,  the  constitution  of  the  directorate  and  the  provisions  re- 
lating to  meetings  of  members.  On  registration  the  name  receives  the 
title  of  "registered  association".  Changes  in  the  directorate  and  in  the 
articles  must  be  registered.  If  the  number  of  members  falls  below 
three,  juristic  personality  is  withdrawn.  Proceedings  connected  with  the 
dissolution  of  associations  and  the  settlement  of  their  affairs  must  be 
reported  for  registration,  and  the  records  are  open  to  public  inspection. 

Section  Second  deals  with  things,  gives  the  definition  of  different  terms 
used  to  designate  different  classes  of  things,  distinguishing  movable  things 
from  lands,  gives  rules   for  determining  what  is  deemed  a  part  of  the 


1 148  APPENDIX 

land  and  what  movable  and  some  for  determining  rights  to  the  fruits 
of  things  and  the  burdens  to  be  borne  by  those  whose  rights  are  limited 
in  duration. 

The  third  section  treats  of  Juristice  Acts.  The  first  title  deals  with 
"disposing  capacity." 

104.  "A  person  is  incapable  of  disposing — 

1.  Who  has  not  completed  his  seventh  year  of  age; 

2.  Who  is  in  a  condition  of  morbid  disturbance  of  the  mental  activity 
incompatible  with  a  free  determination  of  the  will,  in  so  far  as  the  con- 
dition is  not  temporary  in  its  nature; 

3.  Who  has  been  interdicted  on  account  of  insanity." 

105.  "The  declaration  of  intention  of  a  person  incapable  of  disposing 
is  void.  A  declaration  is  also  void  which  is  made  in  a  condition  of  uncon- 
sciousness or  temporary  disturbance  of  the  mental  activity." 

Following  these  paragraphs  are  others  relating  to  contracts  of  minors 
and  others  under  disability,  ratification  and  repudiation  of  them,  giving 
rules  as  to  void  and  voidable  acts  of  persons  under  disability  similar  in 
most  particulars  to  the  rules  prevailing  in  most  countries. 

The  succeeding  titles  of  this  section  deal  with  "Declaration  of  Inten- 
tion," "Contract",  "Conditions — Limitation  of  Time",  Agency — Power  of 
Agency",  and  "Approval — Ratification."  Though  the  arrangement  of 
these  titles  and  the  treatment  of  the  subjects  is  peculiar  the  substance 
of  the  rules  declares  is  substantially  the  same  as  the  Roman  Civil  Law, 
with  some  provisions  with  reference  to  formalities  made  necessary  by 
changed  conditions.  Dealings  by  telegraph  and  telephone  are  recognized 
in  matters  not  requiring  writings  or  official  attestation. 

The  fourth  section  deals  with  "Periods  of  Time — Dates".  The  rules 
accord  with  those  usually  followed  in  the  business  world. 

The  fifth  section  is  entitled  "Prescription". 

194.  "The  right  to  demand  an  act  or  forbearance  from  another  is 
subject  to  prescription.  A  claim  arising  from  a  relation  of  family  law 
is  not  subject  to  prescription,  so  far  as  it  has  for  its  object  the  estab- 
lishment for  the  future  of  the  condition  proper  to  the  relation." 

195.  "The  regular  period  of  prescription  is  thirty  years."  196  gives 
seventeen  classes  of  claims  for  which  the  period  of  prescription  is  two 
years.  These  include  most  claims  for  goods  sold  and  delivered  and 
services  rendered  including  those  of  carriers  and  professional  men.  The 
period  is  four  years  for  claims  for  interest  and  instalments  of  principal, 
for  arrears  of  rent,  annuities,  recurrent  acts  stipulated  for  in  the  transfer 
of  a  farm,  salaries,  pensions,  allowances  for  maintenance  and  all  other 
periodical  payments.  Full  provisions  are  made  for  determining  the  time 
from  which  the  prescription  begins  to  run  and  the  states  of  fact  which 
will  have  the  effect  of  suspending  its  operation. 

325.  "Prescription  may  neither  be  excluded  nor  made  more  onerous  by 
juristic  act.  Prescription  may  be  facilitated,  especially  by  shortening  the 
period  of  prescription." 


CIVIL  CODE  OF  GERMANY     •  1149 

The  sixth  section  deals  with  "self-defence  and  self-help"  in  six  para- 
graphs declaring  the  rules  generally  recognized  on  these  subjects. 
The  seventh  section  treats  of  "Giving  of  Security." 
232.    "If  a  person  has  to  give  security,  he  may  do  so : 

(a)  By  lodging  money  or  negotiable  instruments; 

(b)  By  pledge  of  claims  which  have  been  registered  in  the. Imperial 
debt  ledger  or  the  state  debt  ledger  of  one  of  the  States; 

(c)  By  pledge  of  moveables; 

(d)  By  charging  hypothecas  on  land  situate  within  the  Empire; 

(e)  By  pledge  of  claims  secured  by  hypotheca  on  land  situate  within  the 
Empire,  or  by  pledge  of  land  charges  or  annuity  charges  on  land  situated 
within  the  Empire. 

If  security  cannot  be  given  in  this  manner  it  is  permissible  to  furnish 
a  proper  surety." 

235.  "If  a  person  has  given  security  by  lodging  money  or  negotiable 
instruments,  he  is  entitled  to  exchange  the  money  lodged  for  suitable 
negotiable  instruments,  or  the  negotiable  instruments  lodged  for  other 
suitable  negotiable  instruments,  or  for  money." 

The  leading  purpose  of  this  section  seems  to  be  to  enable  the  person 
giving  security  to  do  so  with  his  own  property  without  involving  his 
friends  as  sureties.  Its  provisions  may  be  studied  with  profit  by  American 
legislators. 

The  Second  Book  treats  of  the  "Law  of  Obligations".  The  first  title 
is  "Obligation  of  Performance".  It  covers  not  only  obligations  for  the 
payment  of  money,  delivery  of  property,  and  performance  of  contractual 
obligations  but  also  negligence  in  the  non-performance  of  duties  which 
the  debtor  is  bound  to  perform. 

246.  "If  by  law  or  juristic  act  a  debt  is  to  bear  interest,  four  per 
cent,  per  annum  shall  be  paid,  unless  some  other  rate  is  specified." 

247.  "If  a  higher  rate  of  interest  than  six  per  cent,  per  annum  is  agreed 
upon,  the  debtor  may,  after  the  expiration  of  six  months,  give  notice 
of  the  payment  of  the  principal,  six  months  notice  being  required.  The 
right  of  payment  on  notice  may  not  be  excluded  or  limited  by  contract. 
These  provisions  do  not  apply  to  obligations  to  bearer." 

A  contract  for  interest  on  interest  is  void,  except  when  made  by  banking 
institutions  for  interest  on  deposits.  These  seem  to  be  the  only  re- 
strictions on  usury. 

The  second*  title  is  "Default  of  the  Creditor"  and  declares  his  duties  to 
accept  performance,  and  to  make  counter-performance  on  his  part  where 
obligated  so  to  do. 

The  arrangement  of  the  subjects  covered  by  the  remainder  of  the 
second  book  is  as  follows : 

Second  Section.     Obligations  ex  Contractu. 

First  Title.     Creation  of  an  Obligation — Scope  of  a  Contract. 

A  contract  impossible  of  performance  is  void,  but  may  subject  the 
maker  to  damages  if  he  knew  of  the  impossibility. 


II50  APPENDIX 

310.  "A  contract  whereby  one  party  binds  himself  to  convey  his  future 
property  or  a  fractional  part  of  his  future  property  or  to  charge  it  with 
a  usufruct,  .is  void." 

"A  contract  whereby  one  party  binds  himself  to  convey  his  present 
property  or  to  charge  it  with  a  usufruct,  requires  judicial  or  notarial 
authentication." 

Second  Title.     Mutual  Contracts. 

Third  Title.     Promise  of  Performance  in  favor  of  a  Third  Party. 

328.  "An  act  of  performance  in  favor  of  a  third  party  may  by  contract 
be  stipulated  for  in  such  manner  that  the  third  party  acquires  a  direct 
right  to  demand  the  performance,"  and  this  right  may  be  inferred  from 
circumstances,  and  it  may  also  be  inferred  where  the  parties  to  the 
contract  have  the  power  to  change  or  take  away  the  third  party's  right. 

335-  "The  promisee  may,  unless  a  contrary  intention  of  the  contracting 
parties  is  to  be  presumed,  demand  performance  in  favour  of  the  third 
party,  even  though  the  right  of  the  performance  is  in  the  latter." 

Fourth  Title.     Earnest — Stipulated  penalty. 

"In  case  of  doubt  the  earnest  is  not  deemed  to  be  a  forfeit,"  and  in 
case  of  doubt  shall  be  credited  on  the  performance,  and  if  the  contract 
is  rescinded  shall  be  returned.  If  the  giver  of  the  earnest  is  responsible 
for  the  failure  of  performance  or  the  contract  is  rescinded  for  his  fault 
the  holder  may  retain  it." 

340.  "If  the  debtor  has  promised  the  penalty  for  the  case  of  his  non- 
fulfilling  his  obligation,  the  creditor  may  demand  the  forfeited  penalty  in 
lieu  of  fulfillment.  If  the  creditor  declares  to  the  debtor  that  he  demands 
the  penalty,  the  claim  for  fulfillment  is  barred. 

"If  the  creditor  has  a  claim  for  compensation  for  non-performance,  he 
may  demand  the  forfeited  penalty  as  the  minimum  amount  of  the  damage. 
Proof  of  further  damage  is  admissible." 

343.  "If  a  forfeited  penalty  is  disproportionately  high,  it  may  be  re- 
duced to  a  reasonable  amount  by  judicial  decree  obtained  by  the  debtor." 

'Fifth  Title.     Rescission. 

Third  Section.     Extinction  of  Obligations. 

First  Title.     Fulfilment. 

Second  Title.    Lodgment. 

372.  "A  debtor  may  lodge  for  the  benefit  of  his  creditor,  money,  nego- 
tiable instruments  and  other  documents  and  valuables  in  a  public  place 
designated  for  that  purpose,  if  the  creditor  is  in  default  of  acceptance. 
The  same  rule  applies  if,  for  any  other  reason  affecting  the  creditor 
personally,  or  in  consequence  of  uncertainty  concerning  the  identity  of 
the  creditor,  not  due  to  negligence,  the  debtor  cannot  fulfill  it  with  safety." 

373.  "If  the  debtor  is  bound  to  perform  only  after  counter-performance 
has  been  effected  by  the  creditor,  he  may  make  the  right  of  the  creditor  to 


CIVIL  CODE  OF  GERMANY  1151 

receive  the  thing  lodged  dependent  upon  counter-performance  by  the 
creditor." 

374.  "The  lodgment  shall  be  made  in  the  lodgment-office  of  the  place 
where  the  performance  is  to  be  effected ;  if  the  debtor  makes  the  lodg- 
ment in  any  other  place,  he  shall  compensate  the  creditor  for  any  damage 
arising  therefrom.  The  debtor  shall  without  delay  notify  the  creditor 
of  the  lodgment;  if  he  fails  to  do  so  he  is  liable  for  compensation.  The 
notification  may  be  dispensed  with  if  it  is  impracticable." 

376.  "The  debtor  has  the  right  to  withdraw  the  thing  lodged.  The 
right  of  withdrawal  is  barred : 

1.  If  the  debtor  declares  to  the  lodgment-office  that  he  waives  the 
right   of   withdrawal; 

2.  If  the  creditor  declares  his  acceptance  to  the  lodgment-office. 

3.  If  non-appealable  judgment  between  the  creditor  and  the  debtor 
declaring  the  lodgment  legitimate  is  presented  at  the  lodgment-office." 

379.  "If  the  right  to  withdraw  the  thing  lodged  is  not  barred,  the 
debtor  may  refer  the  creditor  to  the  thing  lodged. 

"As  long  as  the  thing  is  on  lodgment  the  creditor  bears  the  risk,  and 
the  debtor  is  not  bound  to  pay  interest  or  compensation  for  emoluments 
not  drawn. 

"Jf  the  debtor  withdraws  the  thing  lodged,  the  lodgment  is  deemed  not 
to  have  been  made." 

380.  "In  so  far  as  a  declaration  of  the  debtor  recognising  the  creditor's 
right  to  receive  is  necessary  or  adequate  as  evidence  of  such  right  ac- 
cording to  the  regulations  governing  the  lodgment-office,  the  creditor 
may  demand  from  the  debtor  the  delivery  of  the  declaration  under  the 
same  conditions  under  which  he  would  have  been  entitled  to  demand 
the  performance,  if  the  lodgment  had  not  taken  place." 

Provision  is  made  for  the  sale  of  movables  not  suitable  for  lodgment, 
if  the  creditor  is  in  default,  and  lodgment  of  the  proceeds. 
Third  Title.     Set-off. 
Fourth  Title.    Release. 
Fourth  Section.     Transfer  of  Claims. 

398.  "A  claim  may  by  contract  with  another  person,  be  transferred 
by  the  creditor  to  him.  On  the  conclusion  of  the  contract  the  assignee 
takes  the  place  of  the  assignor." 

399.  "A  claim  is  not  assignable  if  the  performance  cannot  be  effected 
in  favor  of  any  person  other  than  the  original  creditor  without  alteration 
of  its  substance,  or  if  assignment  is  excluded  by  agreement  with  the 
debtor." 

400.  "A  claim  is  not  assignable  if  it  is  not  subject  to  judicial  attachment." 
404.    "The  debtor  may  set  up  all  defenses  against  the  assignee  which 

at  the  time  of  the  assignment  of  the  claim,  were  available  against  the 
assignor." 
406.    "The   debtor   may   also   set   off   against   the   assignee  an   existing 


II52  APPENDIX 

claim  which  he  has  against  the  assignor,  unless  he  had  knowledge  of 
the  assignment  at  the  time  of  the  acquisition  of  the  claim,  or  unless  the 
claim  did  not  become  due  until  after  he  had  acquired  such  knowledge 
and  after  the  maturity  of  the  assigned  claim." 

410.  "The  debtor  is  bound  to  perform  in  favor  of  the  assignee  only 
upon  production  of  an  instrument  of  assignment  executed  by  the  assignor, 
A  notice  or  a  warning  by  the  assignee  is  of  no  effect,  if  it  is  given  without 
production  of  such  an  instrument,  and  the  debtor  without  delay  rejects  it 
for  this  reason.  These  provisions  do  not  apply  if  the  assignor  has  given 
written  notice  of  the  assignment  to  the  debtor." 

413.  "The  provisions  relating  to  the  transfer  of  claims  apply  mutatis 
mutandis  to  the  transfer  of  other  rights,  unless  the  law  provides  otherwise." 

Fifth  Section.    Assumption  of  Debt. 

Sixth  Section.     Plurality  of  Debtors  and  Creditors. 

Seventh  Section.    Particular  kinds  of  Obligations. 

First  Title.    Sale — Exchange. 

Second  Title.    Gift. 

518.  "For  the  validity  of  a  contract  whereby  an  act  of  performance  is 
promised  gratuitously,  judicial  or  notarial  authentication  of  the  promise 
is  necfessary.  If  a  promise  of  debt  or  acknowledgment  of  debt  of  the 
kind  specified  in  780,  781,  be  made  gratuitously,  the  same  rule  applies 
to  the  promise  or  the  declaration  of  acknowledgment." 

519.  "A  donor  is  entitled  to  refuse  fulfilment  of  a  promise  made 
gratuitously  in  so  far  as,  having  regard  to  his  other  obligations,  he  is 
not  in  a  position  to  fulfil  the  promise  without  endangering  his  own 
maintenance  suitable  to  his  station  in  life  or  the  duties  to  furnish 
maintenance  to  others  imposed  upon  him  by  law.  If  the  claims  of  several 
donees  conflict,  the  claim  which  first  arose  takes  priority." 

521.  "A  donor  is  responsible  only  for  wilful  default  and  gross 
negligence." 

522.  "A  donor  is  not  bound  to  pay  interest  for  default." 

A  donor  is  bound  to  make  good  a  defect  of  title  or  fraudulently  con- 
cealed defect  of  quality  in  the  thing  given,  and  to  acquire  title  to  an 
article  promised  that  he  does  not  own. 

528.  "Where  the  donor  after  the  execution  of  the  gift,  is  not  in  a 
position  to  maintain  himself  in  a  manner  suitable  to  his  station  in  life, 
and  to  fulfil  the  statutory  duty  to  furnish  maintenance  imposed  on 
him  in  favor  of  his  relatives  by  blood,  his  wife,  or  his  former  wife, 
he  may  demand  the  donee  to  return  the  gift  under  the  provisions  relating 
to  the  return  of  unjustified  benefits.  The  donee  may  avoid  the  return 
by  payment  of  the  sum  necessary  for  such  maintenance.  ..." 

529.  "The  claim  to  the  return  of  a  gift  is  barred  if  the  donor  has 
brought  about  his  poverty  wilfully  or  by  his  gross  negligence,  or  if  at 
the  time  of  his  impoverishment  ten  years  have  elapsed  since  the  delivery 
of  the  object  given.     The  same  rule  applies  if  the  donee,  haying  regard 


CIVIL  CODE  OF  GERMANY  1153 

to  his  other  obligations,  is  not  in  a  position  to  return  the  gift  without 
endangering  his  own  maintenance  suitable  to  his  station  in  life,  or  the 
fulfilment  of  the  duties  to  furnish  maintenance  to  others  imposed  upon 
him  by  law. 

530.  "A  gift  may  be  revoked  if  the  donee  renders  himself  guilty  of 
gross  ingratitude  by  any  serious  misconduct  towards  the  donor  or  a  near 
relation  of  the  donor.  The  right  to  revoke  belongs  to  the  heirs  of  the 
donor  only  if  the  donee  has  wilfully  and  unlawfully  killed  the  donor, 
or  prevented  him  from  revoking." 

(All  of  the  foregoing  provisions  relating  to  gifts  are  unknown  to 
the  Common  Law  of  England  and  the  United  States.) 

534.  "Gifts  which  are  made  in  compliance  with  a  moral  duty  or  the 
rules  of  social  propriety  are  not  subject  to  recall  or  revocation." 

Third  Title.     Ordinary  Lease.     Usufructuary  Lease. 

559.  "The  lessor  of  a  piece  of  land  has,  by  way  of  security  for  his 
claims  arising  from  the  lease,  a  right  of  pledge  over  the  things  brought 
upon  the  premises  by  the  lessee.  The  right  of  pledge  may  not  be  en- 
forced for  future  claims  for  compensation  nor  for  any  rent  for  a  later 
time  than  the  current  and  following  year  of  the  lease.  It  does  not 
extend  to  things  not  subject  to  judicial  attachment." 

560.  "The  lessor's  right  of  pledge  is  extinguished  by  the  removal  of 
the  things  from  the  land  unless  the  removal  takes  place  without  the 
knowledge  or  in  spite  of  an  objection  of  the  lessor.  The  lessor  may  not 
object  to  the  removal  if  it  takes  place  in  the  regular  course  of  business 
of  the  lessee,  or  in  accordance  with  the  ordinary  affairs  of  life,  or  if 
the  things  remaining  on  the  premises  are  evidently  sufficient  for  the 
security  of  the  lessor." 

562.  "The  lessee  may  prevent  the  enforcement  of  the  lessor's  right 
of  pledge  by  giving  security;  he  may  release  each  individual  thing  from 
the  right  of  pledge  by  giving  security  to  the  extent  of  its  value." 

Fourth  Title.    Loan  for  Use. 

Fifth  Title.     Loan  for  Consumption. 

Sixth  Title.    Contract  for  Service. 

618.  "A  master  has  so  to  fit  up  and  maintain  rooms,  appliances  and 
implements  which  he  has  to  provide  for  the  performance  of  the  service 
and  so  to  regulate  the  services  which  are  to  be  performed  under  his 
orders  or  under  his  direction  that  the  servant  is  protected  against  danger 
to  life  and  health  as  far  as  the  nature  of  the  service  permits. 

"If  the  servant  is  taken  into  the  household,  the  master  shall  make  such 
arrangements  and  regulations  with  regard  to  living  and  sleeping  rooms^ 
sustenance,  and  time  for  labor  and  for  recreation  as  are  necessary  with 
regard  to  the  health,  morality  and  religion  of  the  servant." 

619.  "The  obligations  imposed  upon  the  master  by  617,  618  may  not  be 
avoided  or  limited  by  contract  in  anticipation." 

Where  the  termination  of  the  service  is  not  fixed  by  contract  various 


1 154  APPENDIX 

notices  to  terminate  it  are  required  corresponding  generally  with  the 
periods  by  which  the  compensation  for  the  service  is  measured. 

626.  "Notice  to  terminate  the  service  relation  may  be  given  by  either 
party  without  observance  of  any  term  of  notice  if  a  grave  reason  exists." 

630.  "On  the  termination  of  a  continuous  service  relation  the  servant 
may  demand  from  the  other  party  a  written  testimonial  as  to  the  service 
relation  and  its  duration.  The  testimonial  shall  on  demand  contain  a 
statement  as  to  his  efficiency  and  conduct  in  service." 

Seventh  Title.     Contract  for  Work. 

Eighth  Title.     Brokerage. 

Ninth  Title.     Promise  of  Reward. 

Tenth  Title.     Mandate. 

662.  "By  the  acceptance  of  a  mandate  the  mandatary  binds  himself 
gratuitously  to  take  charge  of  an  affair  for  the  mandator  entrusted  to  him 
by  the  latter. 

671.  "A  mandate  may  be  revoked  at  any  time  by  the  mandator,  and 
terminated  by  notice  at  any  time  by  the  mandatary. 

"The  mandatary  can  give  notice  only  in  such  manner  that  the  mandator 
can  make  other  arrangements  for  the  charge  of  the  affair,  unless  a  grave 
reason  exists  for  the  improper  notice.  If  he  gives  improper  notice 
without  such  reason,  he  shall  compensate  the  mandator  for  any  damage 
arising  therefrom. 

"If  a  grave  reason  exists  the  mandatary  is  entitled  to  give  notice  even 
though  he  has  waived  the  right  to  do  so." 

676.  "A  person  who  gives  advice  or  a  recommendation  to  another  is 
not  bound  to  compensate  for  any  damage  arising  from  following  the 
advice  or  the  recommendation,  without  prejudice  to  his  responsibility 
resulting  from  a  contract  or  an  unlawful  act." 

Eleventh  Title.     Management  of  Affairs  without  Mandate. 

677.  "A  person  who  takes  charge  of  an  affair  for  another  without 
having  received  a  mandate  from  him  or  being  otherwise  entitled  to  do  so 
in  respect  of  him,  shall  manage  the  affair  in  such  manner  as  the  interest 
of  the  principal  requires,  having  regard  to  his  actual  or  presumptive 
wishes." 

679.  "The  fact  that  the  management  of  the  affair  is  opposed  to  the 
wishes  of  the  principal  is  not  taken  into  consideration  if,  without  the 
management  of  the  affair,  a  duty  of  the  principal  the  fulfilment  of  which 
is  of  public  interest  or  a  statutory  duty  to  furnish  maintenance  to  others 
by  the  principal  would  not  be  fulfilled  in  due  time." 

680.  "If  the  management  of  the  affair  has  for  its  object  the  averting 
of  an  imminent  danger  which  threatens  the  principal  the  agent  is  re- 
sponsible only  for  wilful  default  and  gross  negligence." 

Twelfth  Title.     Deposit. 

688,  "By  a  contract  of  deposit  the  depositary  is  bound  to  keep  in  his 
custody  a  moveable  delivered  to  him  by  the  depositor." 


CIVIL  CODE  OF  GERMANY    .  1155 

689.  'IRemuneration  for  the  custody  is  deemed  to  have  been  tacitly 
agreed  upon  if  under  the  circumstances  the  undertaking  of  the  custody 
is  to  be  expected  only  for  remuneration." 

690.  "If  the  custody  is  undertaken  gratuitously,  the  depositary  shall 
be  responsible  only  for  such  care  as  he  is  accustomed  to  exercise  in  his 
own  affairs." 

Thirteenth  Title.     Delivery  of  Things  to  Innkeepers. 

701.  "An  innkeeper  who  makes  a  business  of  receiving  and  lodging 
guests  shall  compensate  a  guest  received  in  the  course  of  business  for 
any  damage  which  the  latter  suffers  through  the  loss  or  damage  of  things 
brought  upon  his  premises.  The  duty  to  make  compensation  does  not 
arise  if  the  damage  is  caused  by  the  guest,  an  attendant  of  the  guest, 
or  a  person  whom  he  has  received,  or  if  it  occurs  by  reason  of  the 
character  of  the  things,  or  by  vis  major." 

"Things  are  deemed  to  have  been  brought  upon  the  premises  which 
the  guest  has  delivered  to  the  innkeeper  or  the  innkeepers  servant  who 
has  been  appointed  to  receive  the  things  or  in  the  circumstances  are 
deemed  to  have  been  so  appointed,  or  which  he  has  brought  to  a  place 
designated  to  him  by  them,  or  in  the  absence  of  such  designation,  to 
a  place  provided  for  such  purpose,  A  posted  notice  whereby  the  inn- 
keeper disclaims  liability  is  of  no  effect." 

702.  "For  money,  negotiable  instruments,  and  valuables  the  innkeeper 
is  liable  under  701  only  to  the  amount  of  one  thousand  marks,  unless 
he  receives  these  articles  into  his  custody  with  knowledge  of  their 
character  as  valuables,  or  refuses  to  undertake  the  custody,  or  unless  the 
damage  is  due  to  the  fault  of  himself  or  his  servants." 

704.  "The  innkeeper  has  a  right  of  pledge  over  the  things  brought 
upon  the  premises  by  the  guest  by  way  of  security  for  his  claims  for 
lodging  and  other  services  afforded  to  the  guest  in  satisfaction  of  his 
needs,  including  disbursements." 

Fourteenth  Title.     Partnership. 

709.  The  management  of  the  affairs  of  the  partnership  belongs  to  all 
the  partners  in  common ;  for  every  affair  the  consent  of  all  the  partners 
is   necessary." 

"If  in  accordance  to  the  contract  of  partnership,  the  majority  of  the 
votes  is  to  decide,  the  majority  shall,  in  case  of  doubt,  be  reckoned 
according  to  the  number  of  partners." 

711.  "If,  according  to  the  contract  of  partnership,  the  management  of 
affairs  belongs  to  all  or  to  several  partners  in  such  manner  that  each 
is  entitled  to  act  alone,  then  each  may  oppose  the  undertaking  of  any  affair 
by  another.    In  case  of  opposition  the  affair  must  be  left  undone. 

"If  a  partnership  is  not  entered  into  for  a  fixed  time,  every  partner 
may  at  any  time  give  notice  of  its  dissolution." 

725.  "If  a  creditor  of  one  partner  has  levied  judicial  attachment  on 
the  share  of  the  partner  in  the  partnership  property,  he  may  give  notice 


1 156  APPENDIX 

of  the  dissolution  of  the  partnership  without  observance  of  any  term 
of  notice,  unless  his  title  in  the  debt  is  only  provisionally  executory. 

"So  long  as  the  partnership  exists  the  creditor  may  not  enforce  the 
rights  of  the  partner  arising  out  of  the  partnership,  with  the  exception 
of  the  claim  to  a  dividend." 

Fifteenth  Title.     Community  of  Ownership. 

744.  "The  management  of  the  common  object  belongs  to  the  participants 
in  common.  Each  participant  is  entitled  to  take  any  measure  necessary 
for  the  preservation  of  the  object  without  the  consent  of  the  other  par- 
ticipants; he  may  require  that  they  give  their  approval  in  advance  for 
such  a  measure." 

745.  "By  a  vote  of  the  majority  regulations  for  management  and  use 
corresponding  to  the  character  of  the  common  object  may  be  determined 
upon.  The  vote  of  the  majority  shall  be  reckoned  according  to  the  value 
of  the  shares." 

747.  "Each  participant  may  dispose  of  his  share.  The  participants 
may  dispose  of  the  common  object  only  as  a  whole  and  only  when  they 
are  acting  in  common." 

752.  "The  dissolution  of  the  community  is  effected  by  partition  in 
kind,  if  the  common  object  or  objects  can  be  distributed  without  dim- 
inution of  value  into  similar  parts  proportional  to  the  shares  of  the 
participants.  The  distribution  of  equal  parts  among  the  participants 
is  made  by  lot. 

753.  "If  partition  in  kind  is  impossible,  the  dissolution  of  the  com-^ 
munity  is  effected  by  sale  of  the  common  object  under  the  provisions 
relating  to  sale  of  pledges;  in  the  case  of  land,  by  compulsory  auction- 
and  distribution  of  the  proceeds,  if  alienation  to  a  third  person  is  not 
permitted,  the  object  shall  be  sold  by  auction  among  the  participants." 

Sixteenth  Title.     Annuities, 

Seventeenth  Title.     Gaming — Betting. 

'J62.  "No  obligation  is  created  by  gaming  or  betting.  What  has  been; 
given  by  reason  of  the  gaming  or  betting  may  not  be  demanded  back 
on  the  ground  that  no  obligation  existed. 

"These  provisions  apply  also  to  an  agreement  whereby  the  losing  party,. 
for  the  purpose  of  satisfying  a  gaming  debt  or  a  bet,  incurs  an  obligation 
toward  the  other  party,  e.g.  an  acknowledgment  of  debt." 

763.  "A  lottery  contract  or  a  raffle  contract  is  binding  if  the  lottery 
or  the  raffle  is  ratified  by  the  government.  In  all  other  cases  the  pro- 
visions of  762  apply. 

764.  "If  a  contract  purporting  to  be  for  the  delivery  of  goods  or 
negotiable  instruments  is  entered  into  with  the  intention  that  the  differ- 
ence between  the  price  agreed  upon  and  the  exchange  or  market  price 
at  the  time  of  delivery  shall  be  paid  by  the  losing  to  the  winning  party,, 
the  contract  shall  be  deemed  to  be  a  gaming  contract.  This  applies, 
also  if  only  one  of  the  parties  knows  or  ought  to  know  of  this  intention.** 

Eighteenth  Title.     Suretyship. 


CIVIL  CODE  OF  GERMANY  •  115?- 

774,  "Where  the  surety  satisfies  the  creditor  the  claim  of  the  creditor 
against  the  principal  debtor  is  transferred  to  him.  The  transfer  may 
not  be  enforced  to  the  detriment  of  the  creditor.  Defenses  of  the 
principal  debtor  arising  from  a  legal  relation  existing  between  him  and 
the  surety  remain  unaffected. 

Nineteenth   Title.      Compromise. 

Twentieth  Title.     Promise  of  debt — Acknowledgment  of  Debt. 

780.  "For  the  validity  of  a  contract  whereby  an  act  of  performance 
is  promised  in  such  manner  that  the  promise  itself  is  to  create  the  obliga- 
tion, a  written  statement  of  the  promise  is  necessary  unless  some  other 
form  is  prescribed. 

782.  "If  a  promise  of  debt  or  an  acknowledgment  of  debt  is  issued 
in  consequence  of  an  agreed  account,  or  by  way  of  compromise,  the 
written  form  prescribed  in  780,  781  is  unnecessary." 

Twenty-first  Title.    Orders  to  pay  or  deliver. 

790.  "A  drawer  may  revoke  his  order  as  against  the  drawee,  so  long 
as  the  drawee  has  not  accepted  the  order  in  favor  of  the  payee,  or  has  not 
made  payment  or  delivery.  This  applies  even  though  the  drawer  by  the 
revocation  acts  contrary  to  an  obligation  imposed  upon  him  in  favor  of 
the  payee." 

791.  "An  order  to  pay  or  deliver  is  not  extinguished  by  the  death  or 
occurrence  of  disposing  incapacity  of  one  of  the  parties." 

Twenty-Second  Title.     Obligations  to  Bearer. 

793.  "If  a  person  has  issued  an  instrument  in  which  he  promises  to 
perform  an  act  in  favor  of  the  bearer  of  the  instrument,  the  bearer  may 
require  him  to  effect  the  promised  performance,  unless  he  is  not  entitled 
to  dispose  of  the  instrument.  The  maker  is,  however,  released  from  his 
obligation  by  performing  in  favor  of  a  bearer,  even  though  the  latter 
is  not  entitled  to  dispose  of  the  instrument.  The  validity  of  the  signa- 
ture may,  by  a  provision  contained  in  the  instrument,  be  made  subject 
to  the  observance  of  a  particular  form.  For  the  signature  a  subscription 
made  by  means  of  mechanical  reproduction  is  sufficient." 

794.  "The  maker  is  bound  by  an  obligation  to  bearer  even  if  it  has 
been  stolen  from  him,  or  lost  by  him,  or  has  otherwise  passed  into  cir- 
culation without  his  consent. 

"The  validity  of  an  obligation  to  bearer  is  not  affected  by  the  fact  that 
the  instrument  is  issued  after  the  maker  has  died  or  has  become  in- 
capable of  disposing." 

795.  "Obligations  to  bearer  issued  within  the  Empire  in  which  the 
payment  of  a  certain  sum  of  money  is  promised  may  be  put  in  circulation 
only  with  the  ratification  of  the  Government. 

"The  ratification  is  given  only  by  the  central  authority  of  the  State  in 
whose  territory  the  maker  has  his  domicile  or  his  industrial  location.' 
The  giving  of  the  ratification  and  the  conditions  under  which  it  is  given 
shall  be  published  in  the  Deutscher  Reichsanzeiger. 


HS8  APPEXDIX 

"An  obligation  which  has  passed  into  circulation  without  the  ratification 
of  the  Government  is  void;  The  maker  shall  compensate  the  bearer  for 
any  damage  caused  by  its  issue." 

796.  ''The  maker  may  set  up  against  the  bearer  of  the  obligation  only 
the  defenses  which  affect  the  validity  of  the  issue,  or  appear  from  the 
instrument  itself  or  which  the  maker  has  directly  against  the  bearer." 

Twenty-third  Title.     Production  of  Things. 

This  title  gives  an  interested  party  the  right  to  inspect  things  or 
documents  in  the  possession  of  another. 

Twenty-fourth  Title.     Unjustified  Benefits. 

812.  "A  person  who,  through  an  act  performed  by  another,  or  in  any 
other  manner,  acquires  something  at  the  expense  of  the  latter  without 
legal  ground,  is  bound  to  return  it  to  him.  He  is  so  bound  even  if  a 
legal  ground  originally  existing  disappears  subsequently,  or  a  result  orig- 
inally intended  to  be  produced  by  an  act  of  performance  done  by  virtue 
&i  a  juristic  act  is  not  produced. 

''Recognition  of  the  existence  or  non-existence  of  a  debt,  if  made  under 
a  contract  is  also  deemed  to  be  an  act  of  performance." 

813.  "The  value  of  an  act  of  performance  done  for  the  purpose  of  ful- 
filling an  obligation  may  be  demanded  back  even  if  there  was  a  defense 
to  the  claim  whereby  the  enforcement  of  the  claim  was  permanently 
barred.  ..." 

814.  "The  value  of  an  act  of  performance  done  for  the  purpose  of 
fulfilling  an  obligation  may  not  be  demanded  back  if  the  person  per- 
forming knew  that  he  was  not  bound  to  effect  the  performance,  or  if  the 
performance  was  in  compliance  with  a  moral  duty,  or  the  rules  of  social 
propriety." 

821.  "A  person  who  incurs  an  obligation  without  legal  ground  may 
refuse  performance,  even  if  the  claim  for  release  from  the  obligation  has 
heen  barred  by  prescription." 

822.  "If  the  recipient  of  a  benefit  transfers  such  benefit  gratuitously  to 
a  third  party,  and  if  in  consequence  of  this  the  obligation  of  the  recipient 
for  return  of  the  benefit  is  excluded,  the  third  party  is  bound  to  return 
the  benefit  as  if  he  had  received  it  from  the  creditor  without  legal  ground." 

Twenty-fifth  Title.    Unlawful  Acts. 

823.  "A  person  who,  wilfully  or  negligently,  unlawfully  injures  the 
life,  body,  health,  freedom,  property  or  any  other  right  of  another  is 
bound  to  compensate  him  for  any  damage  arising  therefrom." 

"A  person  who  infringes  a  statutory  provision  intended  for  the  pro- 
tection of  others  incurs  the  same  obligation.  If,  according  to  the  purview 
of  the  statute,  infringement  is  possible  without  any  fault  on  the  part 
of  the  wrong-doer,  the  duty  to  make  compensation  arises  only  if  some 
fault  can  be  imputed  to  him." 

824.  "A  person  who  maintains  or  publishes,  contrary  to  the  truth,  a 
statement  calculated  to  endanger  the  credit  of  another,  or  to  injure  hi& 


CIVIL  CODE  OF  GERMANY.  1159 

earnings  or  prosperity  in  any  other  manner,  shall  compensate  the  other 
for  any  damage  arising  therefrom  even  if  he  does  not  know  of  its  un- 
truth, provided  he  ought  to  know  it. 

"A  person  who  makes  a  communication  the  untruth  of  which  is  un- 
known to  him,  does  not  thereby  render  himself  liable  to  make  com- 
pensation, if  he  or  the  receiver  of  the  communication  has  a  legal  interest 
in  it." 

833.  "If  a  person  is  killed,  or  the  body  or  health  of  a  person  is  injured, 
or  a  thing  is  damaged  by  an  animal,  the  person  who  keeps  the  animal  is 
bound  to  compensate  the  injured  party  for  any  damage  arising  therefrom." 

835.  "If  land  over  which  its  owner  does  not  have  the  sporting  rights 
is  damaged  by  wild  boar,  red  deer,  elk,  fallow  deer,  roe,  deer,  or  pheasants, 
the  person  who  has  the  sporting  rights  is  bound  to  compensate  the 
injured  party  for  the  damage.  The  duty  to  make  compensation  extends  to 
all  damages  which  the  animals  do  to  products  of  the  land  which  have 
been  harvested,  though  not  yet  gathered  in. 

"If  the  exercise  of  the  sporting  rights  belonging  to  the  owner  is  with- 
drawn from  him  by  law,  the  person  who  is  by  law  entitled  to  exercise 
the  sporting  rights  has  to  make  compensation  for  the  damage.  If  the 
owner  of  a  piece  of  land  over  which  the  sporting  rights,  on  account  of 
the  situation  of  the  land,  can  be  exercised  only  in  common  with  the 
sporting  rights  of  another  piece  of  land,  has  leased  the  sporting  rights  to 
the  owner  of  such  another  piece  of  land  under  a  usufructuary  lease,  the 
latter  is  responsible  for  the  damage. 

"If,  for  the  purpose  of  a  common  exercise  of  the  right  of  sporting, 
the  land-owners  of  a  district  have  been  united  by  law  into  an  association 
which  is  not  liable  as  such,  they  are  responsible  for  damages  in  proportion 
to  the  size  of  their  landed  properties." 

847.  "In  the  case  of  injury  to  the  body  or  health  of  another,  or  in  the 
case  of  the  deprivation  of  liberty,  the  injured  party  may  also  demand 
an  equitable  compensation  in  money  for  the  damage  which  is  not  a 
pecuniary  loss.  The  claim  is  not  transferable,  and  does  not  pass  to  the 
heirs,  unless  it  has  been  acknowledged  by  contract,  or  an  action  on  it  has 
been  commenced." 

"A  like  claim  belongs  to  a  woman  against  whom  an  immoral  crime 
or  offense  is  committed,  or  who  is  induced  by  fraud,  or  by  threats,  or  by 
an  abuse  of  a  relation  of  dependence  to  permit  illicit  co-habitation." 

The  foregoing  extracts  show  the  arrangement,  scope  and  general 
character  of  the  second  book  and  those  provisions  which  appear  to 
be  peculiar  to  this  code. 

Law  of  Things 

Third  Book.     First  Section.     Possession. 

859.  "A  possessor  may  forcibly  resist  unlawful  interference.  If  a 
movable  is  taken  away  from  the  possessor  by   unlawful   interference,  he 


ii6o  APPENDIX 

may  retake  it  by  force  from  the  wrongdoer  if  he  be  caught  in  the  act 
or  immediately  pursued. 

"If  a  possessor  of  land  is  deprived  of  possession  by  unlawful  inter- 
ference, he  may,  immediately  upon  being  dispossessed,  recover  possession 
by  the  expulsion  of  the  wrongdoer." 

Second  Section.     General  Provisions  Relating  to  Rights  over  Land. 

873.  "For  the  transfer  of  ownership  of  land,  or  the  creation  of  any 
right  in  another  over  land,  or  for  the  transfer  of  or  the  creation  of  a 
charge  upon  such  right,  a  real  agreement  between  the  person  entitled  and 
the  other  party  relating  to  the  change  of  title  and  registration  of  the 
change  of  title  in  the  land  register  are  necessary,  unless  the  law  provides 
otherwise. 

'^Before  the  registration  the  parties  are  bound  by  the  agreement  only 
if  the  declarations  have  been  judicially  or  notarially  authenticated,  or 
have  been  made  or  filed  in  the  land  registry  office,  or  if  the  person  entitled 
has  delivered  to  the  other  party  an  authorization  for  registration  con- 
formable with  the  provisions  of  the  Land  Registration  Act." 

879.  "The  order  of  priority  among  several  rights  to  which  land  is 
subject  is  determined,  if  the  rights  have  been  registered  in  the  same 
division  of  the  land  register,  by  the  order  of  registration.  If  the  rights 
have  been  registered  in  different  divisions,  the  right  registered  as  of 
earlier  date  has  priority;  rights  registered  as  of  the  same  date  have 
equal  rank. 

"The  registration  is  conclusive  for  the  order  of  priority,  even  though  the 
real  agreement  necessary  according  to  873  for  the  acquisition  of  the  right 
has  not  been  completed  till  after  the  registration.  A  diffierent  arrange- 
ment of  the  order  of  priority  requires  registration  in  the  land  register." 

883.  "A  caution  may  be  entered  in  the  land  register  for  securing  a 
claim  for  the  concession  or  release  of  a  right  affecting  land  or  affecting 
a  right  over  land,  or  for  the  alteration  of  the  rank  or  substance  of  such 
a  right.  The  registration  of  a  caution  is  also  permissible  for  securing  a 
future  or  conditional  claim. 

"A  disposition  which  is  made  affecting  the  land  or  the  right  after  the 
registration  of  the  caution  is  ineffective,  in  so  far  as  it  would  defeat  or 
impair  the  claim.  This  applies  even  where  the  dis'position  is  made  bv 
means  of  compulsory  execution  or  distraint,  or  by  a  trustee  in  bankruptcy. 

The  rank  of  the  right  for  the  concession  of  which  the  claim  is  made 
is  determined  by  the  date  of  the  registration  of  the  caution," 

885.  "The  registration  of  a  caution  is  effected  by  virtue  of  a  provisional 
decree,  or  of  an  authorization  by  the  person  whose  land  or  right  is 
affected  by  the  caution.  It  is  not  necessary  for  the  issue  of  the  pro- 
visional decree  that  prima  facie  evidence  be  given  that  the  claim  to  be 
secured  is  likely  to  be  endangered.  In  the  registration  reference  may  be 
made  to  the  provisional  decree  or  to  the  authorization  for  registration  for 
fuller  specification  of  the  claim  to  be  secured." 


CIVIL   CODE  OF   GERMANY  1161 

Third   Section.     Ownership. 
First  Title.     Scope  of  Ownership. 

903.  "The  owner  of  a  thing  may,  in  so  far  as  the  law  or  the  rights 
of  third  parties  admit,  deal  with  the  thing  as  he  pleases  and  exclude  others 
from  any  interference  with  it." 

904.  "The  owner  of  a  thing  is  not  entitled  to  forbid  the  interference  of 
another  with  the  thing,  if  the  interference  is  necessary  for  averting  a 
present  danger  and  the  threatened  injury  is  disproportionately  great  in 
comparison  to  the  injury  caused  to  the  owner  by  the  interference.  The 
owner  may  require  compensation  for  the  damage  caused  to  him." 

905.  "The  right  of  the  owner  of  a  piece  of  land  extends  to  the  space 
above  the  surface  and  to  the  substance  of  the  earth  beneath  the  surface. 
The  owner  may  not,  however,  forbid  interference  which  takes  place  at 
such  a  height  or  depth  that  he  has  no  interest  in  its  prevention." 

906.  "The  owner  of  a  piece  of  land  may  not  forbid  the  discharge  of 
gases,  vapors,  odors,  smoke,  soot,  heat,  noise,  vibrations  and  similar  in- 
terferences proceeding  from  another  piece  of  land,  in  so  far  as  the 
interference  does  not,  or  does  not  essentially,  injure  the  use  of  his  land,  or 
is  caused  by  a  use  of  the  other  land  which  is  customary  according  to 
the  local  customs  for  lands  in  such  situation.  Discharge  by  a  special 
conduit  is  not  permitted." 

907.  "The  owner  of  a  piece  of  land  may  prevent  the  construction 
or  erection,  on  an  adjoining  piece  of  land,  of  structures  from  which  it 
can  be  foreseen  with  certainty  that  their  condition  or  use  will  result  in 
an  inadmissible  interference  with  his  land.  If  a  structure  complies 
with  the  provisions  of  the  State  law  which  prescribe  a  specified  distance 
from  the  boundary  or  other  protective  measures,  the  removal  of  the 
structure  can  be  required  only  if  the  inadmissible  interference  actually 
takes  place. 

"Trees  and  shrubs  are  not  structures  within  the  meaning  of  these 
provisions." 

Second  Title.     Acquisition  and  Loss  of  Ownership  of  Land. 

925.  "The  real  agreement  of  the  alienor  and  the  acquirer  necessary 
according  to  873  for  the  transfer  of  ownership  of  land  must  be  declared 
at  the  land  registry  office  in  the  presence  of  both  parties  simultaneously. 

A  conveyance  by  agreement  made  subject  to  any  condition  or  limitation 
of  time  is  of  no  effect." 

Third  Title.     Acquisition  and   Loss  of  Ownership  of  Movables. 

929.  "For  the  transfer  of  ownership  of  a  moveable  it  is  necessary  that 
the  owner  deliver  the  thing  to  the  acquirer  and  make  a  real  agreement 
with  him  that  the  ownership  shall  pass.  If  the  acquirer  is  in  possession 
of  the  thing  the  real  agreement  as  to  the  passing  of  ownership  is 
sufficient." 

930.  "Where  the  owner  is  in  possession  of  the  thing  a  real  agreement 


ii62  APPEXDIX 

between  him  and  the  acquirer  relating  to  a  legal  relation  whereby  the 
acquirer  acquires  indirect  possession  takes  the  place  of  delivery." 

932.  "By  an  alienation  made  under  929  the  acquirer  becomes  owner 
even  though  the  thing  does  not  belong  to  the  alienor,  unless  he  is  in 
bad  faith  at  the  time  at  which  according  to  these  provisions  he  would 
acquire  ownership.  In  the  case  provided  for  by  929  sentence  2,  this 
applies,  however,  only  where  the  acquirer  had  acquired  possession  from 
the  alienor. 

"The  acquirer  is  in  bad  faith  if  it  is  known  to  him,  or  unknown  in 
consequence  of  gross  negligence,  that  the  thing  does  not  belong  to  the 
alienor." 

935.  "Ownership  may  not  be  acquired  under  932  or  934  if  the  thing  has 
been  stolen  from  the  owner,  or  has  been  lost,  or  has  otherwise  become 
missing.  Where  the  owner  was  only  indirect  possessor,  the  same  rule 
applies  if  the  thing  has  been  missed  by  the  possessor. 

"These  provisions  do  not  apply  to  money  or  instruments  to  bearer  nor 
to  things  which  are  alienated  by  means  of  public  auction." 

937.  "A  person  who  has  a  movable  for  ten  years  in  his  proprietary 
possession  acquires  ownership  thereof   (usucaption). 

"iUsucaption  is  excluded  if  the  acquirer  was  in  bad  faith  at  the  time 
of  acquiring  proprietary  possession,  or  if  he  subsequently  learns  that 
the  ownership  does  not  belong  to  him." 

947.  "If  movables  become  attached  to  each  other  in  such  manner  that 
they  become  essential  component  parts  of  a  single  thing,  the  former 
owners  become  co-owners  of  such  thing;  their  shares  are  determined  in 
proportion  to  the  value  which  such  movables  had  at  the  time  of  the 
incorporation.  If  one  of  the  things  is  to  be  regarded  as  the  principal 
thing,  the  owner  of  the  principal  thing  acquires  sole  ownership." 

958.  "A  person  who  takes  proprietary  possession  of  an  ownerless  mov- 
able acquires  ownership  of  such  movable. 

"Ownership  is  not  acquired  if  the  appropriation  is  forbidden  by  law,  or 
if  by  taking  possession  the  right  of  another  to  appropriate  the  movable 
is  violated." 

961.  "If  a  swarm  of  bees  migrates,  they  become  ownerless,  unless  the 
owner  pursue  them  without  delay,  or  gives  up  the  pursuit." 

965.  "A  person  who  finds  a  lost  thing  and  takes  possession  of  it  shall 
give  notice  without  delay  to  the  loser,  or  the  owner,  or  any  other  person 
entitled  to  receive  it.  If  the  finder  does  not  know  the  persons  who  are 
entitled  to  receive  it,  or  if  their  residence  is  unknown  to  him,  he  shall 
without  delay  give  notice  to  the  police  authority  of  the  finding  and  of  the 
circumstances  which  may  be  material  for  the  discovery  of  the  persons 
entitled  to  receive  the  thing.  If  the  thing  is  not  worth  more  than  three 
marks,  notification  is  not  required." 

971.  "The  finder  may  demand  a  reward  from  the  person  entitled  to 
receive  the  thing.     The  reward  amounts  to  five  per  cent,  of  the  value  of 


CIVIL  CODE  OF   GERM  AX  Y  1163 

the  thing  up  to  three  hundred  marks.,  and  one  per  cent,  on  value  in  excess; 
in  the  case  of  animals  one  per  cent.  If  the  thing  has  a  value  only  for  the 
person  entitled  to  receive  it,  the  rev^ard  shall  be  determined  in  an 
equitable  manner.  The  claim  is  barred  if  the  finder  violates  the  duty 
of  giving  notice,  or  conceals  the  finding  on  inquiry  being  made." 

973-  "Upon  the  lapse  of  one  year  from  the  notice  of  the  finding  to 
the  police  authority  the  finder  acquires  ownership  of  the  thing,  unless 
within  such  period  a  person  entitled  to  receive  it  has  become  known  to 
the  finder,  or  has  notified  the  police  authority  of  his  right.  Upon  the 
acquisition  of  ownership  all  other  rights  over  the  thing  are  extinguished." 

Fourth  Title.    Claims  arising  from  Ownership. 

Fifth  Title.     Co-ownership. 

ion.  "Every  co-owner  may  enforce  as  against  third  parties  any  claims 
arising  from  ownership  in  respect  of  the  entire  thing." 

Fourth  Section.    Heritable  Building  Rights. 

1012.  "A  piece  of  land  may  be  charged  with  a  right  in  such  manner 
that  the  person  in  whose  favor  the  right  is  created  has  an  alienable  and 
heritable  right  to  have  a  structure  upon  or  beneath  the  surface  of  such 
land." 

1014.  "The  limitation  of  a  heritable  building  right  to  a  part  of  a  build- 
ing, e.g.  to  one  particular  story,  is  not  permissible." 

1016.  "A  heritable  building  right  is  not  extinguished  by  the  destruction 
of  the  structure." 

1017.  "The  provisions  relating  to  land  apply  to  heritable  building 
rights.  ..." 

Fifth  Section.     Servitudes. 
First  Title.    Real  Servitudes. 

1018.  "A  piece  of  land  may  be  charged  with  a  right  in  favor  of  the 
owner  for  the  time  being  of  another  piece  of  land  in  such  manner  that  the 
latter  may  use  the  land  in  certain  ways,  or  that  certain  acts  may  not  be 
done  on  the  land,  or  that  the  exercise  of  a  right  is  excluded  which  arises 
from  the  ownership  of  the  servient  tenement  in  respect  of  the  other 
land." 

Second  Title.    Usufruct. 

1030.  "A  thing  may  be  charged  with  a  right  in  such  manner  that  the 
person  in  whose  favor  the  right  is  created  is  entitled  to  draw  the  emolu- 
ments of  the  thing.  A  usufruct  may  be  limited  by  the  exclusion  of  certain 
classes  of  emoluments." 

Third  Title.    Limited  personal  Servitudes. 

1090.  "A  piece  of  land  may  be  charged  with  a  right  in  such  manner 
that  the  person  in  whose  favor  the  right  exists  is  entitled  to  use  the  land 
in  certain  ways,  or  that  some  other  authority  belongs  to  him  which  can 
constitute  the  substance  of  a  real  servitude." 

1092.  "A  limited  personal  servitude  is  not  transferable.  The  exercise 
of  the  servitude  can  be  transferred  to  another  person  only  if  the  transfer 
is  authorized." 


Ii64       .  ■  APPENDIX 

Sixth  Section.    Real  Right  of  Preemption. 

1094.  "A  piece  of  land  may  be  charged  with  a  right  in  such  manner 
that  the  person  in  whose  favor  the  right  exists  is  entitled  to  preemption 
as  against  the  owner. 

The  right  of  preemption  may  also  be  created  in  favor  of  the  owner 
for  the  time  being  of  another  piece  of  land." 

Seventh  Section.    Perpetual  Charges  on  Land. 

1105.  "A  piece  of  land  may  be  charged  with  a  right  in  such  manner 
that  periodical  acts  of  performance  are  to  be  done  with  the  means 
derived  from  the  land  in  favor  of  the  person  in  whose  favor  the  right 
exists." 

"A  perpetual  charge  may  also  be  granted  in  favor  of  the  owner  for  the 
time  being  of  another  piece  of  land." 

Eighth  Section.    Hypotheca — Land  Charge — Annuity  Charge. 

First  Title.     Hypotheca. 

1113.  "A  piece  of  land  may  be  charged  with  a  right  in  such  manner 
that  to  the  person  in  whose  favor  the  right  is  created  a  specified  sum  of 
money  is  to  be  paid  out  of  the  land  m  satisfaction  of  a  claim  belonging 
to  him.  A  hypotheca  may  also  be  granted  for  a  future  or  a  conditional 
claim." 

II 15.  "In  the  registration  of  a  hypotheca,  the  name  of  the  creditor,  tlie 
amount  of  the  claim,  and,  if  the  claim  bears  interest,  the  rate  of  interest, 
and  where  other  accessory  payments  are  to  be  made,  their  amount  must 
be  stated  in  the  land  register;  for  the  rest  reference  may  be  made  to  the 
authorization  for  fuller  specification  of  the  claim. 

"In  the  case  of  the  registration  of  a  hypotheca  for  loan  for  consumption 
made  by  a  credit  institution  whose  charter  has  been  made  public  by  the 
competent  authority,  a  reference  to  the  charter  is  sufficient  for  the 
specification  of  such  accessory  payments  as  are  to  be  made  according 
to  the  charter  in  addition  to  interest." 

11116.     "A  certificate  of  hypotheca  is  issued  for  the  hypotheca." 

1136.  "An  agreement  is  void  whereby  the  owner  binds  himself  to  the 
creditor  not  to  alienate  the  land  nor  to  subject  it  to  further  rights." 

Second  Title.     Land  Charge — Annuity  Charge. 

1 191.  "A  piece  of  land  may  be  charged  in  such  manner  that  a  specified 
sum  of  money  is  to  be  paid  out  of  the  land  to  the  person  in  whose 
favor  the  charge  is  made.  The  charge  may  also  be  made  in  such  man- 
ner that  interest  upon  the  sum  of  money,  as  well  as  other  accessory  pay- 
ments, is  to  be  paid  out  of  the  land." 

1 192.  "The  provisions  relating  to  hypothecas  apply  mutatis  mutandis  to 
land  charges,  except  in  so  far  as  a  contrary  intention  appears  from  the 
fact  that  a  land  charge  does  not  presuppose  a  claim.  The  provisions 
relating  to  interest  on  a  hypothecary  claim  apply  to  interest  on  a  land 
charge." 

1199.  "A  land  charge  may  be  granted  in  such  manner  that  a  specified 


CIVIL   CODE  OF   GERMAXY  .  1165 

sum  of  money  is  to  be  paid  out  of  the  land  at  regularly  recurring  periods. 
In  granting  an  annuity  charge  the  amount,  by  payment  of  which  the 
annuity  charge  may  be  redeemed  must  be  specified.  The  redemption 
sum  must  be  stated  in  the  land  register," 

Ninth   Section.     Pledges  of  Moveables  and  of  iRights. 

First  Title.     Pledge  of   Moveables. 

1204.  "A  moveable  may  for  the  security  of  a  claim,  be  charged  in  such 
manner  that  the  creditor  is  entitled  to  seek  satisfaction  out  of  the  move- 
able. A  pledge  may  also  be  granted  as  a  security  for  a  future  or  a 
conditional  claim." 

1205.  "For  the  grant  of  a  pledge  it  is  necessary  that  the  owner  deliver 
the  thing  to  the  creditor  and  make  a  real  agreement  with  him  to  the 
effect  that  the  pledges  shall  belong  to  the  creditor.  If  the  creditor  is  in 
possession  of  the  thing,  a  real  agreement  as  to  the  creation  of  the  pledge 
is  sufficient.  The  delivery  of  a  thing  which  is  in  the  indirect  possession 
of  the  owner  may  be  replaced  by  the  owner  transferring  the  indirect 
possession  to  the  pledgee  and  notifying  the  pledge  to  the  possessor." 

1228.  "The  satisfaction  of  the  pledgee  out  of  the  thing  pledged  is 
effected  by  sale.  The  pledgee  is  entitled  to  sell  the  thing  pledged  as 
soon  as  the  claim  is  due  in  whole  or  in  part.  If  the  object  owed  is  not 
money,  the  sale  is  permissible  only  if  the  claim  has  been  transmuted  into 
a  money  claim." 

1229.  "An  agreement  made  before  the  right  to  sell  has  arisen  whereby 
the  ownership  of  the  thing  is  to  pass  or  is  to  be  transferred  to  the 
pledgee  if  satisfaction  is  not  made,  or  is  not  made  in  due  time,  is  void." 

1235.  "The  sale  of  the  thing  pledged  is  to  be  effected  by  means  of 
public  auction."  But  if  it  has  an  exchange  or  market  value  it  may  be 
sold  at  private  sale  at  the  current  price.  A  month's  warning  to  the 
pledgor  prior  to  the  sale  is  required. 

1259.  "The  special  provisions  of  1260  to  1271  apply  to  a  pledge  affecting 
a  ship  entered  in  the  ship  register." 

1260,  "For  the  grant  of  such  a  pledge  a  real  agreement  between  the 
owner  of  the  ship  and  the  creditor  that  the  pledge  shall  belong  to  the 
creditor,  and  an  entry  of  the  pledge  in  the  ship  register,  are  necessary.  .  .  . 

"In  the  registration  must  be  stated  the  name  of  the  creditor,  the  amount 
in  money  of  the  claim,  and,  if  the  claim  bears  interest,  the  rate  of  interest. 
For  the  detailed  description  of  the  claim,  reference  may  be  made  to  the 
authorization  for  registration." 

1268.  "The  pledgee  may  seek  satisfaction  out  of  the  ship  and  its  ac- 
cessories only  by  virtue  of  an  executory  title  according  to  the  provisions 
applicable  to  compulsory  execution." 

Second  Title.     Pledge  of  Rights. 

1273.  "A  right  can  also  be  the  object  of  pledge.  The  provisions  relat- 
ing to  pledge  of  moveables  apply  mutatis  mutandis  to  pledge  of  rights  in 
so  far  as  a  contrary  intention  does  not  appear  from  1274  to  1296." 


II 66  APPENDIX 

1274.  "The  i:rant  of  a  pledge  of  a  right  is  effected  according  to  the 
provisions  applicable  to  the  transfer  of  rights.  If  for  the  transfer  of  the 
r  g..t  the  delivery  of  a  thing  is  necessary,  the  provisions  of  1205,  1206 
apply.  So  long  as  a  right  is  not  transferable,  a  pledge  of  the  right  may 
not  be  granted." 

Family  Law 

First   Section.   Civil   Marriage. 
First  Title.     Betrothal. 

1297.  "No  action  can  be  brought  upon  a  betrothal  for  the  fulfilment  of 
the  promise  to  marry.  A  promise  to  pay  a  penalty  in  case  of  non-fulfil- 
ment of  the  promise  is  void." 

1298.  "If  a  betrothed  person  withdraws  from  the  betrothal,  he  (or 
she)  shall  compensate  the  other  party  to  the  betrothal,  the  latter's  parents,, 
and  any  third  parties  who  have  acted  in  loco  parentis,  for  any  damage 
caused  by  their  having  incurred  outlay  or  obligations  in  expectation  of 
the  marriage.  He  shall  also  compensate  the  other  party  to  the  betrothal 
for  any  damage  which  the  latter  suffers  through  having,  in  expectation 
of  the  marriage,  taken  other  measures  affecting  his  (or  her)  property 
or  employment.  The  damage  shall  be  made  good  only  in  so  far  as  the 
incurring  of  the  outlay  or  obligations  and  the  other  measures  were 
reasonable  under  the  circumstances.  The  duty  to  make  compensation 
does  not  arise  if  a  grave  reason  for  the  withdrawal  exists." 

Second  Title.     Conclusion  of  Marriage, 

1303.  "A  man  may  not  marry  before  attaining  majority;  a  woman  may 
not  marry  before  the  completion  of  her  sixteenth  year  of  age.  Dispensa- 
tion from  this  provision  may  be  granted  to  a  woman."  The  approval  of 
the  parent  or  guardian  is  required  for  those  lacking  disposing  capacity  or 
under  age." 

1310.  "A  marriage  cannot  be  concluded  between  relatives  by  blood  in  the 
direct  line,  nor  between  brothers  and  sisters  of  full  blood  or  half  blood, 
nor  between  relatives  by  marriage  in  the  direct  line.  A  marriage  cannot 
be  concluded  between  persons  one  of  whom  has  had  sexual  intercourse 
with  parents,  grandparents,  or  descendants  of  the  other.  Relationship  by 
blood,  within  the  meaning  of  these  provisions,  exists  also  between  an 
illegitimate  child  and  his  descendants  on  the  one  side,  and  the  father  and 
his  relatives  by  blood  on  the  other  side." 

1317.  "The  marriage  is  concluded  by  the  parties  to  the  betrothal, 
personally  and  simultaneously  present,  declaring  before  a  registrar  their 
intention  to  enter  into  wedlock  with  each  other.  The  registrar  must  be 
ready  to  receive  the  declarations.  The  declarations  cannot  be  made  sub- 
ject to  any  condition  or  limitation  of  time." 

Third  Title.    Void  and  Voidable  Marriages. 

1324.  "A  marriage  is  void  if  in  the  conclusion  of  the  marriage  the 
form  prescribed  in  1317  has  not  been  observed."     But  if  entered  in  the 


CIVIL   CODE  OF   GERMANY     .  1167 

marriage  register  and  followed  by  cohabitation  ten  years  or  three  years 
and  until  one  of  them  dies  it  is  validated. 

A  marriage  is  void  if  one  of  the  parties  was  incapable  of  disposing, 
married  to  another,  or  if  they  are  related  within  the  prohibited  degrees. 

It  may  be  avoided  if  procured  by  mistake  of  identity,  fraud  or  duress. 

Fourth  Title.     Re-marriage  in  case  of   Declaration  of   Death. 

1348.  "If  one  spouse,  after  the  other  spouse  has  been  declared  dead, 
concludes  a  new  marriage,  the  new  marriage  is  not  void  merely  because 
the  spouse  declared  dead  is  still  alive,  unless  both  spouses  at  the  con- 
clusion of  the  marriage  knew  that  he  (or  she)  was  living  at  the  time 
of  the  declaration  of  death. 

"Upon  the  conclusion  of  the  new  marriage  the  former  marriage  is 
dissolved.  It  remains  dissolved  even  if  the  declaration  of  death  is  re- 
voked in  consequence  of  an  action  to  set  it  aside." 

Fifth  Title.     Effects  of  Marriage  in  General. 

1354.  "The  right  to  decide  in  all  matters  affecting  the  common  conjugal 
life  belongs  to  the  husband ;  he  determines  especially  the  place  of  abode 
and  the  dwelling. 

"The  wife  is  not  bound  to  conform  to  the  decision  of  the  husband  if  the 
decision  appears  to  be  an  abuse  of  his  right." 

Sixth  Title.     Matrimonial  Regimes. 

1363.  "By  the  conclusion  of  the  marriage  the  property  of  the  wife  be- 
comes subject  to  the  management  and  usufruct  by  the  husband.  Con- 
tributed property  includes  also  the  property  which  the  wife  acquires 
during  the  marriage." 

1365.  "The  management  and  usufruct  by  the  husband  does  not  extend 
to  the  separate  property  of  the  wife." 

Separate  property  includes  clothing,  ornaments,  property  acquired  from 
her  labor  or  business,  that  so  declared  in  the  marriage  contract,  that  ac- 
quired by  succession  or  legacy. 

1389.  "The  husband  shall  bear  the  expenses  of  the  joint  household.  In 
so  far  as  the  net  income  of  the  contributed  property  is  necessary  for  the 
maintenance  of  the  husband  and  of  the  wife  and  the  descendants  of  the 
marriage,  she  may  require  him  to  spend  the  net  income  for  such  main- 
tenance without  regard  to  his  other  obligations." 

1391.  "If  it  is  to  be  apprehended,  owing  to  the  conduct  of  the  husband, 
that  the  rights  of  the  wife  will  be  infringed  in  a  manner  seriously  en- 
dangering the  contributed  property,  she  may  require  her  husband  to  give 
security." 

1395.  "The  wife  requires  the  approval  of  the  husband  for  making  any 
disposition   affecting  the  contributed   property." 

If  the  husband  consents  to  her  carrying  on  a  separate  business  further 
consent  to  transactions  in  such  business  is  unnecessary. 

1410.  "Creditors  of  the  husband  may  not  demand  satisfaction  out  of 
the  contributed  property." 


ii68  APPENDIX 


property : 

(i)  The  liabilities  of  the  wife  arising  from  any  unlawful  act  com- 
mitted by  her  during  the  marriage,  or  arising  from  any  criminal  pro- 
ceedings instituted  against  her  on  account  of  such  an  act; 

(2)  The  liabilities  of  the  wife  arising  from  any  legal  relation  affecting 
her  separate  property,  even  if  they  have  arisen  before  the  date  of  the 
marriage  or  before  the  time  at  which  the  property  became  separate 
property ; 

(3)  The  cos-ts  of  any  action  to  which  the  wife  is  a  party  relating  to 
any  of  the  liabilities  specified  in   (i)  and  (2). 

1427.  "The  husband  shall  bear  the  expenses  of  the  joint  household. 
For  defraying  the  expenses  of  the  joint  household  the  wife  shall  make 
a  reasonable  contribution  to  her  husband  out  of  the  income  of  her  prop- 
erty, and  the  earnings  of  her  work,  or  of  any  separate  business  carried  on 
by  her.  The  husband  may  claim  contribution  in  respect  of  past  expenses 
only  in  so  far  as  such  contribution  was  in  arrear  after  demand  made  by 
the  husband.  This  claim  of  the  husband  is  not  transferable." 
II. — Contractual  Regimes 

1432.  "Both  spouses  may  regulate  their  property  relations  by  contract, 
and  may  also  terminate  or  modify  the  matrimonial  regime  even  after 
the  date  of  the  marriage." 

1434.  "A  marriage  contract  must  be  entered  into  before  a  court  or  a 
notary  in  the  presence  of  both  parties  simultaneously." 

1443.  "The  common  property  is  subject  to  the  management  of  the 
husband.  The  husband  is  also  entitled  to  take  possession  of  all  things 
forming  part  of  the  common  property  or  to  dispose  of  such  property, 
or  to  bring  actions  relating  to  such  property  in  his  own  name.  By  the 
husbands  acts  of  management  the  wife  is  personally  bound  neither  to 
third  parties  nor  to  her  husband." 

1445.  "The  husband  requires  the  approval  of  his  wife  for  disposal  of 
any  land  forming  part  of  the  common  property,  or  for  incurring  an 
obligation  to  make  such  a  disposition." 

1449.  "If  the  husband  disposes  of  any  right  forming  part  of  the  common 
property  without  the  necessary  consent  of  his  wife,  she  may  enforse  such 
right  in  Court  against  third  parties  without  the  concurrence  of  the 
husband." 

1483.  "If  any  descendants  of  the  marriage  are  living  at  the  time  of 
the  death  of  one  of  the  spouses,  the  community  of  goods  is  continued 
between  the  surviving  spouse  and- the  descendants  of  the  marriage  who 
would  be  entitled  to  inherit  in  case  of  statutory  succession.  The  share 
of  the  deceased  spouse  in  the  common  property  does  not  belong  to  his 
(or  her)  estate  in  this  case;  for  the  rest  the  succession  to  the  spouse 
takes  place  according  to  the  general  provisions. 

"If  there  are  other  descendants  besides  the  descendants  of  the  mar- 
riage, their  rights  to  inherit  and  their  shares  in  the  estate  are  determined 


CIVIL  CODE  OF  GERMANY  1169 

in  such  manner  as  if  the  continued  community  of  goods  had  not  been 
created." 

1526.  "Separate  property  of  the  wife  includes  that  which  has  been 
declared  to  be  separate  property  in  the  marriage  contract,  or  is  acquired 
by  the  wife  under  1369  or  1370. 

The  husband  does  not  have  separate  property. 

The  same  rules  which  apply  to  the  separate  property  under  the  regime 
of  general  community  of  goods  apply  to  the  separate  property  of  the 
wife." 

1527.  "It  is  presumed  that  the  property  existing  at  any  time  is  com- 
mon property." 

1529.  "The  expenses  of  the  joint  household  are  borne  by  the  common 
property.  The  common  property  also  bears  the  charges  upon  the  con- 
tributed property  of  both  spouses;  the  extent  of  such  charges  is  de- 
termined according  to  the  provisions  of  1384  to  1387,  applicable  to  the 
contributed  property  of  the  wife  under  the  regime  of  management  and 
usufruct." 

1550.  "The  contributed  property  of  a  spouse  is  excluded  from  the 
common  property." 

1558.  "Entries  in  the  marriage  property  register  shall  be  made  in  the 
District  Court  in  whose  district  the  husband  has  his  domicile." 

.Paragraphs  1363  to  1563  deal  with  property  rights  and  pecuniary  obli- 
gations growing  out  of  the  marriage  relation.  To  an  American  lawyer 
the  subject  of  the  charges  against  the  separate  property  of  the  wife,  the 
property  contributed  by  each  and  the  common  property  appears  to  be 
treated  in  very  minute  detail  and  with  many  very  indefinite  provisions. 

Seventh  Title.     Divorce. 

A  marriage   may  be  dissolved  on   any  one  of   the   following  grounds 

Adultery  or  any  act  punishable  under  171,175  of  the  Criminal  Code. 

An  attempt  against  the  complaining  party's  life. 

Wilful  desertion  for  one  year. 

Grave  breach  of  marital  duty  by  dishonest  or  immoral  conduct  or  gross 
ill-treatment. 

Insanity  continuing  for  three  years  without  hope  of  recovery. 

Divorce  is  granted  by  judicial  decree  and  the  petition  for  it  must  be 
filed  within  six  months  after  the  petitioner  had  knowledge  of  the 
ground  for  it. 

Second  Section.     Relationship. 

First  Title.     General  Provisions. 

Second  Title.     Legitimate  Descent. 

1591.  "A  child  born  after  the  conclusion  of  a  marriage  is  legitimate,  if 
the  wife  conceived  the  child  before  or  during  the  marriage,  and  the 
husband  cohabited  with  the  wife  within  the  period  of  possible  conception. 
The  child  is  not  legitimate  if  it  is  evidently  impossible  under  the  cir- 
cumstances that  the  wife  has  conceived  the  child  by  the  husband."  .  .  . 


I  I/O  APPEXDIX 

1592.  "The  period  of  possible  conception  is  the  period  between  the 
181  St  day  and  the  302nd  day,  both  inclusive,  before  the  day  of  the  birth 
of  the  child."  .  .  . 

1593-  "The  illegitimacy  of  a  child  born  during  the  marriage  or  within 
302  days  after  the  dissolution  of  the  marriage,  may  not  be  set  up  unless 
the  husband  has  repudiated  the  legitimacy,  or  has  died  without  having 
lost  the  right  of  repudiation." 

Third  Title.     Duty  to  Furnish  Maintenance. 

1601.  "Persons  related  by  blood  in  the  direct  line  are  bound  to  furnish 
maintenance  to  one  another." 

1602.  "A  person  is  entitled  to  maintenance  only  if  he  is  not  in  a  po- 
sition to  maintain  himself. 

"An  unmarried  minor  child  may,  even  if  he  has  property,  claim  main- 
tenance from  his  parents  in  so  far  as  the  income  of  his  property  and  the 
earnings  of  his  work  are  not  sufficient  for  his  maintenance." 

1606.  "Descendants  are  liable  to  furnish  maintenance  before  relatives 
by  blood  in  the  ascending  line  are  liable.  The  descendants'  duty  to 
furnish  maintenance  is  determined  according  to  the  statutory  order  of 
succession  and  according  to  their  respective  shares  in  the  inheritance. 

"Among  relatives  by  blood  in  the  ascending  line  those  of  nearer  degree 
are  liable  before  those  of  remoter  degree;  relatives  of  the  same  degree 
are  liable  in  equal  shares.  The  father  is,  however  liable  before  the 
mother;  if  the  mother  has  the  right  of  usufruct  of  her  childs  property 
she  is  liable  before  the  father  is  liable." 

Fourth  Title.     Legal   Status   of   Legitimate   Children. 

1626.  "A  child  is  under  parental  power  so  long  as  he  is  a  minor." 

1627.  "A  father  has,  by  virtue  of  his  parental  power,  the  right  and  the 
duty  to  take  care  of  his  child's  person  and  property." 

In  the  management  of  the  child's  property  the  parent  is  subject  to  the 
direction  of  the  Guardianship  Court  as  to  matters  of  importance. 

1684.  "The  parental  power  belongs  to  the  mother: 

(i)  If  the  father  has  died,  or  has  been  declared  dead; 
(2)  If  the  father  has  forfeited  the  parental  power  and  the  marriage 
has  been  dissolved. 

In  the  case  of  declaration  of  death  the  parental  power  of  the  mother 
begins  at  the  date  which  is  deemed  to  be  the  date  of  death." 

Fifth  Title.     Legal  Status  of  Children  Born  of  Void  Marriages. 

1699.  "A  child  born  of  a  void  marriage  who,  if  the  marriage  were 
valid,  would  have  been  legitimate,  is  deemed  to  be  legitimate  in  so  far 
as  both  spouses  did  not  know  at  the  time  of  the  marriage  that  the  mar- 
riage was  void.  The  provision  does  not  apply  if  the  marriage  was  void 
owing  to  some  defect  in  form,  and  the  marriage  has  not  been  entered  in 
the  marriage  register." 

Sixth  Title.     Legal  Status  of  Illegitimate  Children. 

1705.  "An  illegitimate  child  has  the  legal  status  of  a  legitimate  child 
in  respect  of  his  mother  and  her  relatives  by  blood." 


CIVIL   CODE   OF   GERMAXY.  1171 

1708.  "The  father  of  an  illegitimate  child  is  bound  to  furnish  the 
child,  until  the  completion  of  his  sixteenth  year  of  age,  maintenance 
suitable  to  the  mother's  station  in  life.  Maintenance  includes  all  the 
necessaries  of  life  and  the  expenses  of  education  and  of  preparation  for 
a  profession."  .  .  . 

Seventh   Title.     Legitimation  of   Illegitimate   Children. 

1719.  "An  illegitimate  child  acquires,  by  reason  of  the  fact  that  the 
father  marries  the  mother,  the  legal  status  of  a  legitimate  child  from 
and  after  the  celebration  of  the  marriage." 

1723.  "An  illegitimate  child  may,  upon  the  application  of  the  father,  be 
declared  legitimate  by  order  of  the  public  authority." 

1726.  "For  the  declaration  of  legitimation  the  approval  of  the  child 
and,  if  the  child  has  not  completed  his  twenty-first  year  of  age,  the  ap- 
proval of  the  mother  are  necessary.  If  the  father  is  married,  he  requires 
also  the  approval  of  his  wife.  .  .  ." 

Eighth  Title.     Adoption. 

1 74 1.  "A  person  who  has  no  legitimate  descendants  may  adopt  another 
by  contract  wnth  the  latter.  Such  a  contract  requires  the  confirmation  of 
the  competent  Court." 

1744.  "The  adoptor  must  have  completed  his  fiftieth  year  of  age,  and 
must  be  at  least  18  years  older  than  the  adopted  child."  This  requirement 
is  subject  to  dispensation. 

Third  Section.     Guardianship. 

First  Title.     Guardianship  over  Minors. 

This  title  contains  very  full  and  detailed  provisions  for  the  appoint- 
ment of  guardians  by  the  Guardianship  Court,  the  management  of  the 
affairs  of  the  ward  and  the  supervision  of  the  Court. 

1858.  "A  family  council  shall  be  established  by  the  Guardianship  Court, 
if  the  father  or  the  legitimate  mother  of  the  ward  has  directed  its 
establishment.  .  .  ." 

i860.  "A  family  council  consists  of  the  judge  of  the  Guardianship 
Court  as  president,  and  no  less  than  two  nor  more  than  six  members." 

1872.  "A  family  council  has  the  rights  and  the  duties  of  the  Guardian- 
ship Court.  The  duty  to  conduct  its  affairs  is  imposed  upon  the  presi- 
dent. Members  of  a  family  council  may  exercise  their  functions  only 
in  person.  They  are  responsible  in  the  same  manner  as  a  judge  of  a 
Guardianship  Court." 

Second  Title.     Guardianship   over   Persons   of   Full   Age. 

1896.  "If  a  person  of  full  age  has  been  interdicted,  a  guardian  is  ap- 
pointed for  him," 

1897.  "Except  so  far  as  a  contrary  intention  appears  from  1898  to  1908, 
the  provisions  applicable  to  guardianship  over  a  minor  apply  to  guardian- 
ship over  a  person  of  full  age." 

Third  Title.     Curatorship. 

1909.  "A  curator  is   appointed   for  a  person   under  parental  power  or 


1 172  APPENDIX 

guardianship,  to  take  charge  of  the  affairs  of  which  the  parent  or  guar- 
dian is  prevented  from  taking  charge.  .  .  ." 

A  curator  may  also  be  appointed  for  a  person  of  full  age  who  is 
unable  to  take  care  of  his  own  affairs. 

Law  of  Inheritance 

Fifth  Book.    First  Section.    Order  of  Succession. 

Heirs  are  divided  into  the  following  classes : 

First,  Descendants  of  the  deceased. 

Second,   Parents  of  the  deceased  and  their  descendants. 

Third,  Grandparents  of  the  deceased  and  their  descendants. 

Fourth,  Great  granparents  and  their  descendants. 

Fifth,  and  subsequent  classes,  remoter  ancestors  and  their  descendants. 

Children  inherit  in  equal  shares,  and  the  descendants  of  a  deceased 
child  take  per  stirpes.  Parents  inherit  in  equal  shares.  Heirs  of  the 
second  and  third  classes  take  also  by  representation  and  on  the  principle 
of  equality  among  those  standing  in  the  same  position. 

1930.  "A  relative  by  blood  is  not  entitled  to  inherit  so  long  as  there  is 
a  relative  by  blood  of  a  preceding  class." 

193 1.  "The  surviving  spouse  of  the  deceased,  in  the  capacity  of  statu- 
tory heir,  is,  concurrently  with  relatives  by  blood  of  the  first  class,  en- 
titled to  one  fourth  the  inheritance,  or,  concurrently  with  relatives  hy 
blood  of  the  second  class  or  grandparents,  to  one  half  of  the  inheritance. 
H  there  are  both  grandparents  and  descendants  of  the  grandparents,  the 
spouse  takes  also  the  share  in  the  other  half  which  would  devolve  upon 
such  descendants  as  provided  for  in  1926.  If  there  are  neither  relatives 
by  blood  of  the  first  or  second  class  nor  grandparents,  the  spouse  takes 
the  whole  inheritance." 

Second  Section.    Legal  Status  of  an  Heir. 

First  Title.  Acceptance  and  Disclaimer  of  an  Inheritance. — Supervision 
of  the  Probate  Court. 

1942.  "An  inheritance  passes  to  the  heir  entitled  to  inherit,  subject  ta 
his  right  of  disclaiming  it.  The  Treasury  may  not  disclaim  an  inheritance 
devolving  upon  it  as  statutory  heir." 

Second  Title.    Liability  of  an  Heir  for  the  Liabilities  of  the  Estate, 

1967.  "An  heir  is  liable  for  the  liabilities  of  the  estate. 

The  liabilities  of  the  estate  include  not  only  the  debts  incurred  by  the 
deceased,  but  also  the  obligations  imposed  upon  the  heir  as  such,  e.g.. 
the  obligations  arising  from  any  rights  to  compulsory  portions,  legacies- 
and  testamentary  burdens." 

1968.  "The  heir  bears  the  funeral  expenses  of  the  deceased  suitable- 
to  the  latters  station  in  life." 

1975.  "The  liability  of  an  heir  for  the  liabilities  of  an  estate  is  limited 
to  the  estate,  if  a  curatorship  over  the  estate  has  been  established  for  the- 


CIVIL  CODE  OF  GERMANY  1173 

satisfaction  of  the  creditors  of  the  estate  (i.e.,  administration  of  the 
estate),  or  if  bankruptcy  proceedings  have  been  instituted  against  the 
estate." 

1994.  "The  Probate  Court  shall,  upon  the  application  of  a  creditor  of 
the  estate,  fix  a  period  for  the  heir  to  file  the  inventory.  After  the  ex- 
piration of  the  period  the  heir  is  liable  without  limitation  for  the  liabili- 
ties of  the  estate  unless  an  inventory  has  been  filed  within  such  period. 
The  applicant  shall  offer  prima  facie  proof  of  his  claim.  The  validity 
of  the  fixing  of  the  period  is  not  affected  by  the  fact  that  the  claim 
proves  to  be  non-existent." 

2007.  "If  an  heir  is  entitled  to  several  shares  in  the  inheritance,  his 
liability  for  the  liabilities  of  the  estate  in  respect  of  each  of  the  shares 
is  determined  just  as  if  the  shares  belonged  to  different  heirs.  In  cases 
of  the  right  of  accrual  and  in  those  provided  for  by  1935  this  applies  only 
where  the  shares   are  unequally  charged." 

Third  Title.     Petitio  Hereditatis. 

This  title  deals  with  the  recovery  of  the  estate  by  the  heir  from  those 
in  possession  of  it. 

Fourth  Title.     Plurality  of  Heirs. 

2032.  "If  the  deceased  leaves  several  heirs,  the  estate  becomes  the 
common  property  of  the  heirs." 

2033.  "Each  co-heir  may  dispose  of  his  share  in  the  estate.  A  contract 
whereby  a  co-heir  disposes  of  his  share  requires  judicial  or  notarial 
authentication.  A  co-heir  may  not  dispose  of  his  share  in  the  indi- 
vidual objects  belonging  to  the  estate." 

2034.  "If  a  co-heir  sells  his  share  to  a  third  party,  the  other  co-heirs 
are  entitled  to  preemption.  The  period  for  the  exercise  of  the  right 
of  preemption  is  three  months.  The  right  of  preemption  passes  by 
inheritance." 

2058.  "The  heirs  are  liable  as  joint  debtors  for  the  common  liabilities 
of  the  estate." 

Third  Section.    Wills. 

First  Title.     General  Provisions. 

2064.  "A  person  may  make  a  will  only  in  person." 

This  title  deals  with  the  construction  to  be  given  to  certain  gifts,  the 
presumptions  attending  them  and  the  avoidance  of  testamentary  dispo- 
sitions. 

Second  Title.     Appointment  of  Heirs. 

2087.  "If  a  testator  has  bequeathed  his  property  or  an  aliquot  part  of 
his  property  to  a  beneficiary,  the  disposition  is  deemed  to  be  the  ap- 
pointment of  an  heir  even  if  the  beneficiary  has  not  been  named  as  an 
heir. 

"If  particular  objects  only  have  been  given  to  the  beneficiary,  it  is  not 
to  be  presumed,  in  case  of  doubt,  that  he  is  to  be  an  heir,  even  if  he  has 
been  named  as  an  heir." 

2088.  "If  a  testator  has  appointed  only  one  heir,  and  if  the  appoint- 


1 174  APPENDIX 

merit  is  limited  to  an  aliquot  part  of  the  inheritance,  the  statutory  suc- 
cession takes  place  in  respect  of  the  other  parts.  The  same  rule  applies, 
if  the  testator  has  appointed  several  heirs  with  a  limitation  of  each  to 
an  aliquot  part,  and  the  parts  do  not  exhaust  the  whole  inheritance." 

Third  Title.     Appointment  of  Reversionary  Heirs. 

2  ICO.  "A  testator  may  appoint  an  heir  in  such  manner  that  the  latter 
does  not  become  an  heir  until  after  another  person  has  previously  become 
an  heir." 

This  paragraph  is  followed  by  forty-six  others  dealing  in  detail  with 
the  rights  and  liabilities  of  limited  and  reversionary  heirs. 

Fourth  Title.     Legacies. 

2147.  "An  heir  or  a  legatee  may  be  charged  with  a  legacy.  Unless  the 
testator  has  otherwise  provided,  the  heir  is  deemed  to  have  been  charged." 

21150.  "A  legacy  given  to  an  heir  (a  preferential  legacy)  is  deemed  to 
be  a  legacy  even  if  the  heir  himself  is  charged  therewith." 

2160.  "A  legacy  is  inoperative  if  the  legatee  was  not  living  at  the  time 
of  the  accrual  of  the  inheritance." 

Fifth  Title.     Testamentary  Burdens. 

Sixth  Title.    Executors. 

2197.  "A  testator  may  by  will  appoint  one  or  more  executors.  The 
testator  may  appoint  a  substitutional  executor  to  act  in  the  event  of  the 
original  appointee  failing  or  ceasing  to  be  an  executor  before  or  after 
acceptance  of  the  office." 

2205.  "The  executor  shall  administer  the  estate.  He  is  entitled  to  take 
possession  of  the  estate  and  to  dispose  of  any  objects  belonging  thereto. 
He  is  entitled  to  make  gratuitous  dispositions  only  so  far  as  they  are 
made  in  compliance  with  a  moral  duty  or  the  rules  of  social  propriety." 

221 1.  "The  heir  may  not  dispose  of  any  object  belonging  to  the  estate 
subject  to  the  administration  of  the  executor.  The  provisions  in  favor 
of  those  who  derive  rights  from  a  person  without  title  apply  mutatis 
mutandis." 

2212.  "A  right  subject  to  the  administration  of  the  executor  may  be 
enforced  in  court  only  by  the  executor." 

2214,  "'Creditors  of  the  heir  who  are  not  creditors  of  the  estate  may 
not  have  recourse  to  objects  belonging  to  the  estate  subject  to  the  ad- 
ministration of  the  executor." 

Seventh  Title.    The  Making  and  Revocation  of  a  Will. 

2229.  "A  person  who  is  limited  in  disposing  capacity  does  not  require 
the  consent  of  his  statutory  agent  for  making  a  will.  A  minor  may  not 
make  a  will  until  he  has  completed  his  sixteenth  year  of  age.  A  person 
who  is  interdicted  on  account  of  feeble-mindedness,  prodigality  or  drunk- 
enness, may  not  make  a  will.  Such  incapacity  begins  immediately  on 
the  presentation  of  the  application,  by  virtue  of  which  the  interdiction 
takes  place." 

2231.  "A  will  may  generally  be  made  in  the  following  manner: 
(i)  Before  a  judge  or  notary; 


CIVIL  CODE  OF  GERMANY  1175 

(2)  By  a  declaration  of  the  testator,  written  and  signed  with  his  own 
hand,  stating  the  place  where  and  the  date  at  which  it  is  made." 
2233.  "In  superintending  the  making  of  a  will,  the  judge  must  be  at- 
tended by  a  registrar  or  by  two  witnesses;  the  notary  must  be  attended 
by  another  notary  or  by  two  witnesses." 

2238.  "The  will  shall  be  made  in  the  following  manner :  The  testator 
either  makes  an  oral  declaration  of  his  last  will  to  the  judge  or  notary, 
or  delivers  to  him  a  written  statement  accompanied  by  an  oral  declara- 
tion that  the  written  statement  contains  his  last  will.  The  written  state- 
ment may  be  delivered  open  or  sealed.  It  may  be  written  by  the  testator 
himself  or  by  any  other  person.  A  minor  or  a  person  who  cannot  read 
may  make  a  will  only  by  oral  declaration." 

2239.  "All  persons  taking  part  in  superintending  the  making  of  a  will 
must  be  present  during  the  whole  proceedings." 

2240.  "A  protocol  relating  to  the  making  of  the  will  must  be  drawn  up 
in  the  German  language." 

2241.  "The  protocol  must  contain — 

(i)  The  name  of  the  place  and  date  of  the  proceedings; 

(2)  The  names  of  the  testator  and  of  all  persons  taking  part  in  the 
proceedings ; 

(3)  The  declarations  of  the  testator  required  by  2238,  and,  where  a 
written  statement  is  delivered,  the  fact  that  the  written  statement 
has  been  delivered." 

2242.  "The  protocol  must  be  read  out  to  and  ratified  by  the  testator,  and 
signed  by  him  with  his  own  hand.  In  the  protocol  the  fact  that  this  has 
been  done  must  be  recorded.  The  protocol  should  on  demand  be  laid 
before  the  testator  for  his  perusal. 

"If  the  testator  declares  that  he  cannot  write,  a  record  of  such  declara- 
tion in  the  protocol  is  substituted  for  his  signature.  The  protocol  must 
be  signed  by  all  the  persons  taking  part  in  the  proceeding." 

2253.  "A  will  or  any  particular  dispositions  contained  therein  may  be 
revoked  by  the  testator  at  any  time. 

"Interdiction  of  the  testator  on  account  of  feeble-mindedness,  prodi- 
gality, or  habitual  drunkenness  does  not  prevent  the  revocation  of  a  will 
made  before  the  interdiction." 

Eighth  Title.    Joint  Wills. 

2265.  "A  joint  will  may  be  made  only  by  a  married  couple." 

2272.  "A  joint  will  may  be  withdrawn  from  official  custody  only  by 
both  spouses  in  the  manner  provided  for  by  2256." 

Fourth  Section.     Contract  of  Inheritance. 

2278.  "Each  of  the  parties  to  a  contract  of  inheritance  may  make  con- 
tractual dispositions  mortis  causa. 

"Dispositions  other  than  those  relating  to  the  institution  of  an  heir, 
legacies,  and  testamentary  burdens  may  not  be  made." 

2286.  "The  right  of  the  testator  to  dispose  of  his  property  by  juristic 
act  inter  vivos  is  not  limited  by  a  contract  of  inheritance." 


1 1 76  APPENDIX 

2299.  "Either  of  the  contracting  parties  may  unilaterally  make  any 
disposition  in  the  contract  of  inheritance  which  may  be  made  by  will. 
To  such  a  disposition  the  same  applies  as  if  it  had  been  made  by  will. 
The  disposition  may  also  be  revoked  by  any  contract  whereby  a  con- 
tractual disposition  may  be  revoked.  Where  the  contract  of  inheritance 
is  revoked  by  the  exercise  of  the  right  of  rescission  or  by  contract,  the 
disposition  is  thereby  invalidated,  unless  the  contrary  intention  of  the 
testator  is  to  be  inferred." 

Fifth  Section.     Compulsory  Portion.  * 

2303.  "If  a  descendant  of  a  testator  is  excluded  from  succession  by 
disposition  mortis  causa,  he  may  demand  his  compulsory  portion  from  the 
heir.  The  compulsory  portion  is  equal  to  one-half  the  statutory  portion. 
The  same  right  belongs  to  the  parents  and  spouse  of  the  testator,  if 
they  have  been  excluded  from  succession  by  a  disposition  mortis  causa." 

2305.  "If  a  share  in  the  inheritance  has  been  left  to  a  compulsory  bene- 
ficiary which  is  less  than  one-half  of  his  statutory  portion,  the  compulsory 
beneficiary  may  claim  the  deficiency  from  his  co-heirs  as  his  compulsory 
portion." 

2333-  "A  testator  may  deprive  a  descendant  of  his  compulsory  portion — 
(i)  If  the  descendant  makes  an  attempt  against  the  life  of  the  tes- 
tator, or  of  his  spouse,  or  of  any  of  his  descendents ; 

(2)  If  the  descendant  has  been  guilty  of  wilful  corporal  illtreatment 
of  the  testator  or  his  spouse;  in  the  case  of  illtreatment  of  his 
spouse,  however,  only  where  the  descendant  is  also  descended 
from  such  spouse; 

(3)  If  the  descendant  has  been  guilty  of  any  crime,  or  any  serious 
wilful  offense  against  the  testator  or  his  spouse; 

(4)  If  the  descendant  maliciously  commits  a  breach  of  his  statutory 
duty  to  furnish  maintenance  to  the  testator; 

(5)  If  the  descendant  leads  a  dishonorable  or  immoral  life  contrary 
to  the  testator's  wishes." 

2334.  "A  testator  may  deprive  his  father  of  his  compulsory  portion  if 
the  latter  has  been  guilty  of  any  of  the  offenses  specified  in  2333  (i), 
(3).  (4)-  The  testator  has  the  same  right  against  his  mother  if  she  has 
been  guilty  of  any  such  offense." 

2335.  "A  testator  may  deprive  his  (or  her)  spouse  of  his  (or  her) 
compulsory  portion  if  the  spouse  is  guilty  of  an  offence  by  virtue  of 
which  the  testator  is  entitled  to  petition  for  divorce  as  provfded  for  in 
1565  to  1568." 

Sixth  Section.     Unworthiness  to  Inherit. 

2339.  "A  person  is  unworthy  to  inherit — 

(i)  Who  has  wilfully  and  unlawfully  killed  or  attempted  to  kill  the 
testator,  or  has  brought  him  to  a  condition  in  consequence  of 
which  the  \ testator  has  become  incapable,  down  to  the  date  of 
his  death,  of  making  or  revoking  a  disposition  mortis  causa; 


CIVIL  CODE  OF  GERMANY  ii77 

(2)  Who  has  wilfully  and  unlawfully  prevented  the  testator  from 
making  or  revoking  a  disposition  mortis  causa; 

(3)  Who  has,  by  fraud  or  unlawful  threats,  induced  the  testator  to 
make  or  revoke  a  disposition  mortis  causa; 

(4)  Who  has,  in  respect  of  a  disposition  mortis  causa  made  by  the 
testator,  been  guilty  of  any  act  punishable  under  the  provisions 
of  267  to  274  of  the  Criminal  Code.  .  .  ." 

Seventh   Section.     Renunciation  of   Inheritance. 

2348,  "A  contract  of  renunciation  requires  judicial  or  notarial 
authentication." 

Eig'hth  Section.     Certificate  of  Inheritance. 

2353.  "The  Probate  Court  shall  issue  to  the  heir  on  demand  a  certifi- 
cate relating  to  his  right  of  inheritance,  and,  where  he  is  entitled  only  to 
a  share  in  the  inheritance,  relating  to  the  value  of  his  share." 

2359.  "The  certificate  of  inheritance  may  be  issued  only  if  the  Probate 
Court  holds  that  the  facts  necessary  to  support  the  application  have  been 
established." 

Ninth    Section.     Purchase   of   an   Inheritance. 

2371.  "A  contract  whereby  an  heir  sells  the  inheritance  which  has 
devolved  on  him,  requires  judicial  or  notarial  authentication." 

******* 

In  testimony  whereof  We  have  signed  with  Our  own  hand  and  have 
affixed  fhe  Imperial  Seal. 

Given  in  the  New  Palace,  the  i8th  day  of  August,  1896. 

WILLIAM, 

Prince  of  Hohenlohe. 

On  the  same  day  an  Introductory  Act  was  also  promulgated  providing 
that  the  Civil  Code  should  take  effect  on  January  i,  1900.  And  also  The 
Act  relating  to  Alterations  in  the  Act  for  the  Organization  of  the  Ju- 
diciary, The  Code  of  Civil  Procedure  and  the  Bankruptcy  Act;  the  Act 
Relating  to  Compulsory  Auction  and  Compulsory  Management;  the  Land 
Registration  Act,  and  the  Voluntary  Jurisdiction  Act.  This  act  contains 
many  important  provisions  concerning  the  application  of  the  Civil  Code  to 
aliens  and  to  the  validity  of  the  laws  of  the  States  included  within  the 
Empire. 


MAGNA  CHARTA 

John,  by  the  grace  of  God  King  of  England,  Lord  of  Ireland,  Duke  of 
Nprmandy  and  Aquitaine,  and  Earl  of  Anjou:  To  the  Archbishops 
Bishops,  Abbots,  Earls,  Barons,  Justiciaries,  the  Foresters,  Sheriffs, 
Governors,  Officers,  and  to  all  Bailiffs  and  other  faithful  subjects, 
greeting : 

Know  that  we,  in  the  presence  of  God,  and  for  the  health  of  our  soul 
and  the  souls  of  our  ancestors  and  heirs,  to  the  honor  of  God,  and  the 
exaltation  of  the  holy  Church,  and  amendment  of  our  kingdom,  by  the 
advice  of  our  venerable  fathers,  Stephen,  Archbishop  of  Canterbury, 
primate  of  all  England  and  cardinal  of  the  holy  Roman  Church,  Henry, 
archbishop  of  Dublin,  William,  bishop  of  London;  Peter  of  Winchester, 
Jocelin  of  Bath  and  Glastonbury,  Hugh  of  Lincoln,  Walter  of  Worcester, 
William  of  Coventry,  Benedict  of  Rochester,  bishops;  and  Master  Pan- 
dulph  the  Pope's  sub-deacon  and  ancient  servant  brother;  Aymeric, 
master  of  the  temple  in  England;  and  the  noble  persons — William  Mare- 
schal,  Earl  of  Pembroke,  William,  Earl  of  Salisbury;  William,  Earl  of 
Warren;  William,  Earl  of  Arrundel;  Alan  de  Galoway,  constable  of 
Scotland ;  Warin  Fitz-Gerald ;  Peter  Fitz-Herbert,  and  Hubert  De  Burgh, 
seneschal  of  Poictou;  Hugo  de  Neville,  Matthew  Fitz-Herbert,  Thomas 
Basset,  Alan  Basset,  Philip  de  Albiney,  Robert  de  Roppele,  John  Mare- 
scall,  John  Fitz-Hugh,  and  others,  our  liege  men, — have  in  the  first  place 
granted  to  God  and  by  this  our  present  charter  confirmed  for  us  and 
our  heirs  forever. 

L  The  Church  of  England  shall  be  free  and  enjoy  her  whole  rights  and 
liberties  inviolable.  And  we  will  have  them  to  be  so  observed,  which 
appears  from  hence ;  that  the  freedom  of  elections,  which  was  reckoned 
most  necessary  for  the  Church  of  England,  of  our  own  free  will  and 
pleasure  we  have  granted  and  confirmed  by  our  charter,  and  obtained 
the  confirmation  from  Pope  Innocent  III,  before  the  discord  between  us 
and  our  barons,  which  charter  we  shall  observe  and  do  will  it  to  be 
faithfully  observed  by  our  heirs  forever. 

II.  We  have  also  granted  to  all  the  freemen  of  our  kingdom,  for  us 
and  for  our  heirs  forever,  all  the  unwritten  liberties  to  have,  and  to  hold, 
them  and  their  heirs  of  us  and  our  heirs. 

III.  If  any  of  our  earls  or  barons,  or  others  who  hold  of  us  in  chief  by 
military  service,  shall  die,  and  at  the  time  of  his  death  his  heir  is  of  full 
age  and  owes  a  relief,  he  shall  have  his  inheritance  by  the  ancient  relief, 
that  is  to  say,  the  heir  or  heirs  of  an  earl  for  a  whole  earl's  barony,  by  a 
hundred  pounds;  the  heir  or  heirs  of  a  baron,  for  a  whole  barony,  by  a 
hundred  pounds;  the  heir  or  heirs  of  a  knight,  for  a  Whole  knights  fee, 
by  a  hundred  shillings  at  most,  and  he  that  oweth  less  shall  give  less, 
according  to  the  ancient  custom  of  fees. 

1 178 


MAGNA   CHART  A  1179 

IV.  If  the  heir  of  any  such  be  under  age,  and  shall  be  in  ward,  when 
he  comes  of  age,  he  shall  have  his  inheritance  without  relief  or  fine. 

V.  .The  warden  of  the  land  of  such  heir  who  shall  be  under  age  shall 
take  of  the  land  of  such  heir  only  reasonable  issues,  reasonable  customs, 
and  reasonable  services ;  and  that  without  destruction  and  waste  of  the 
men  or  things  (upon  the  estate)  :  and  if  he  commit  the  guardiansliip  of 
those  lands  to  the  sheriff,  or  any  other,  who  is  answerable  to  us  for  the 
issues  of  the  land,  we  will  compel  him  to  give  satisfaction  and  the  land 
shall  be  committed  to  two  lawful  and  discreet  tenants  of  that  fee,  who 
shall  be  answerable  for  the  issues  to  us  or  to  him  whom  we  shall  assign. 
And  if  we  give  or  sell  the  wardship  of  any  such  lands  to  any  one,  and  he 
shall  make  destruction  or  waste  upon  them,  he  shall  lose  the  wardship, 
which  shall  be  committed  to  two  lawful  and  discreet  tenants  of  that  fee, 
who  shall  in  like  manner  be  answerable  to  us,  as  hath  been  said. 

VI.  But  the  warden  so  long  as  he  has  the  wardship  of  the  land,  shall 
keep  up  and  maintain  the  houses,  parks,  warrens,  ponds,  mills,  and  other 
things  pertaining  to  the  land,  out  of  the  issues  of  the  same  land;  and 
shall  restore  to  the  heir,  when  he  comes  of  full  age,  the  whole  land 
stocked  with  ploughs  and  carriages,  according  as  the  time  of  wainage 
shall  require  and  the  issues  of  the  land  can  reasonably  bear. 

VII.  Heirs  shall  be  married  without  disparagement  (so  as  that  before 
matrimony  shall  be  contracted  those  who  are  nearest  to  the  heir  in 
blood  shall  be  made  acquainted  witji  it). 

VIII.  A  widow  after  the  death  of  her  husband,  shall  forthwith  and 
without  any  difficulty  have  her  marriage  and  her  inheritance;  nor  shall 
she  give  anything  for  her  dower  or  her  marriage  or  her  inheritance  which 
her  husband  and  she  held  at  the  day  of  his  death.  And  she  may  remain 
in  the  capital  messuage  or  mansion  house  of  her  husband  forty  days 
after  his  death,  within  which  time  her  dower  shall  be  assigned. 

IX.  No  widow  shall  be  distrained  to  marry  herself,  so  long  as  she 
has  a  mind  to  live  without  a  husband.  But  yet  she  shall  give  security 
that  she  will  not  marry  without  our  assent,  if  she  holds  of  us;  or 
without  the  consent  of  the  lord  of  whom  she  holds,  if  she  holds  of 
another. 

X.  Neither  we  nor  our  bailiffs  shall  seize  any  land  or  rent  for  any 
debt,  so  long  as  there  shall  be  chattels  of  the  debtor  upon  the  premises 
sufficient  to  pay  the  debt,  nor  shall  the  sureties  of  the  debtor  be  dis- 
trained, so  long  as  the  principal  debtor  is  sufficient  for  the  payment  of 
the  debt. 

XI.  And  if  the  principal  debtor  fail  in  the  payment  of  the  debt,  not 
having  wherewithal  to  discharge  it,  then  the  sureties  shall  answer  the 
debt,  and  if  they  will  they  shall  have  the  lands  and  rents  of  the  debt,  or 
until  they  shall  be  satisfied  for  the  debt  which  they  paid  for  him;  unless 
the  principal  debtor  can  show  himself  acquitted  thereof  against  the  said 
sureties. 


ii8o  APPENDIX 

XII.  If  anyone  have  borrowed  anything  of  the  Jews,  more  or  less,  and 
dies  before  the  debt  be  satisfied,  there  shall  be  no  interest  paid  for  that 
debt,  so  long  as  the  heir  is  under  age,  of  whomsoever  he  may  hold.  And 
if  the  debt  falls  into  our  hands,  we  will  take  only  the  chattels  mentioned 
in  the  charter  or  instrument. 

XIII.  And  if  anyone  shall  die  indebted  to  the  Jews,  his  wife  shall  have 
her  dower  and  pay  nothing  of  that  debt;  and  if  the  deceased  left  chil- 
dren under  age,  they  shall  have  necessaries  provided  for  them  according 
to  the  tenement  of  the  deceased,  and  out  of  the  residue  the  debt  shall  be 
paid;  saving  however  the  service  of  the  lords.  In  like  manner  let  it  be 
with  the  debts  due  to  other  persons  than  the  Jews. 

XIV.  No  scutage  or  aid  shall  be  imposed  in  our  kingdom,  unless  by  the 
common  council  of  our  kingdom,  except  to  redeem  our  person,  and  to 
make  our  eldest  son  a  knight,  and  once  to  marry  our  eldest  daughter ;  and 
for  this  there  shall  only  be  paid  a  reasonable  aid. 

XV.  In  like  manner  it  shall  be  concerning  the  aids  of  the  city  of 
London;  and  the  city  of  London  shall  have  all  of  its  ancient  liberties  and 
free  customs,  as  well  by  land  as  by  water. 

XVI.  Furthermore,  we  will  and  grant  that  all  other  cities  and  boroughs 
and  towns  and  ports  shall  have  all  their  liberties  and  free  customs  and 
shall  have  the  common  council  of  the  kingdom  concerning  the  assessment 
of  their  aids,  except  in  the  three  cases  aforesaid. 

XVII.  And  for  the  assessing  of  scutages  we  shall  cause  to  be  sum- 
moned the  archbishops,  bishops,  abbots,  earls,  and  great  barons  of  the 
realm,  singly  by  our  letters. 

XVIII.  And  furthermore  we  shall  cause  to  be  summoned,  in  general 
by  our  sheriffs  and  bailiffs,  all  others  who  hold  of  us  in  chief  at  a 
certain  day;  that  is  to  say,  forty  days  before  their  meeting,  at  least,  to  a 
certain  place;  and  in  all  letters  of  such  summons  we  will  declare  the 
cause  of  the  summons. 

XIX.  And  summons  being  thus  made,  the  business  shall  proceed,  on  the 
day  appointed,  according  to  the  advice  of  such  as  shall  be  present,  al- 
though all  that  were  summoned  come  not. 

XX.  We  will  not  for  the  future  grant  to  anyone  that  he  may  take  aid 
of  his  own  free  tenants,  unless  to  redeem  his  body,  and  to  make  his 
eldest  son  a  knight,  and  once  to  marry  his  eldest  daughter;  and  for  this 
there  shall  only  be  paid  a  reasonable  aid. 

XXI.  No  man  shall  be  distrained  to  perform  more  service  for  a  knights 
fee  or  other  free  tenement,  than  is  due  from  thence. 

XXII.  Common  pleas  shall  not  follow  our  court,  but  shall  be  holden  in 
some  certain  place.  Trials  upon  the  writs  of  novel  disseisin,  and  of  mort 
d'ancestor,  and  of  darrein  presentment  shall  be  taken,  but  in  their  proper 
counties,  and  after  this  manner;  we,  or  (if  we  shall  be  out  of  the  realm) 
our  chief  justiciary,  shall  send  two  justiciaries  through  every  county 
four  times  a  year,  who,  with  the  four  knights  chosen  out  of  every  shire 


MAGNA   CHARTA  1181 

by  the  people,  shall  hold  the  said  assizes  in  the  county,  on  the  day  and 
at  the  place  appointed. 

XXIII.  And  if  any  matters  cannot  be  determined  on  the  day  appointed 
to  hold  the  assizes  in  each  county,  so  many  of  the  knights  and  freeholders 
as  bave  been  at  the  assizes  aforesaid  shall  be  appointed  to  decide  them 
as  is  necessary,  according  as  there  is  more  or  less  business. 

XXIV.  A  freeman  shall  not  be  amerced  for  a  small  fault;  but  accord- 
ing to  the  degree  of  the  fault,  and  for  a  great  crime  in  proportion  to 
the  heinousness  of  it,  saving  to  him  his  contenement,  and  after  the  same 
manner  a  merchant,  saving  to  him  his  merchandise. 

XXV.  And  a  villein  shall  be  amerced  after  the  same  manner,  saving 
to  him  his  wainage,  if  he  falls  under  our  mercy.  And  none  of  the 
aforesaid  amercements  shall  be  assessed  but  by  the  oath  of  honest  men 
of  the  neighborhood. 

XXVI.  Earls  and  barons  shall  not  be  amerced  but  by  their  peers,  and 
according  to  the  quality  of  the  offense. 

XXVII.  No  ecclesiastical  person  shall  be  amerced  but  according  to  the 
proportion  aforesaid,  and  not  according  to  the  value  of  his  ecclesiastical 
benefice. 

XXVIII.  Neither  a  town  nor  any  person  shall  be  distrained  to  make 
bridges  over  rivers  unless  anciently  and  of  right  they  are  bound  to  do  it. 

XXIX.  No  sheriff,  constable,  coroner,  or  other  our  bailiffs  shall  hold 
pleas  of  the  crown. 

XXX.  All  counties,  hundreds,  wapentakes,  and  tithings  shall  stand  at 
the  old  rents  without  any  increase  except  in  our  demesne  lands. 

XXXI.  If  any  one  that  holds  of  us  a  lay  fee  dies,  and  the  sheriff  or 
our  bailiff  show  our  letters  patent  of  summons  concerning  the  debt  due 
to  us  from  the  deceased,  it  shall  be  lawful  for  the  sheriff  or  our  bailiff 
to  attach  and  register  the  chattels  of  the  deceased,  found  upon  his  lay 
fee,  to  the  value  of  the  debt,  by  the  view  of  lawful  men  so  as  nothing 
be  removed  until  our  whole  debt  be  paid,  and  the  rest  shall  be  left  to 
the  executors  to  fulfill  the  will  of  the  deceased.  And  if  there  be  nothing 
due  from  him  to  us,  all  the  chattels  shall  remain  to  the  deceased;  saving 
to  his  wife  and  children  their  reasonable  shares. 

XXXII.  If  any  freeman  die  intestate  his  chattels  shall  be  distributed 
by  the  hands  of  his  nearest  relations  and  friends,  by  view  of  the  church, 
saving  to  everyone  his  debts  which  the  deceased  owed. 

XXXIII.  No  constable  or  bailiff  of  ours  shall  take  corn  or  other  chat- 
tels of  any  man  unless  he  presently  give  him  money  for  it  or  has  respite 
of  payment  from  the  seller. 

XXXIV.  No  constable  shall  distrain  any  knight  to  give  money  for 
castle  guard,  if  he  himself  shall  do  it  in  his  own  person  or  by  another 
able  man,  in  case  he  shall  be  hindered  by  any  reasonable  cause. 

XXXV.  And  if  we  shall  lead  him  or  if  we  shall  send  him  into  the  army 
he  shall  be  free  from  castle  guard  for  the  time  he  shall  be  in  the  army, 
by  our  command. 


ii82  APPENDIX 

XXXVI.  Xo  sheriff  or  bailiff  of  ours  or  any  other  shall  take  horses 
or  carts  of  any  for  cartage. 

XXXVII.  Neither  shall  we  or  our  officers  take  any  man's  timber  for 
our  castles  or  other  uses,  unless  by  consent  of  the  owner  of  the  timber. 

XXXVIII.  We  will  retain  the  lands  of  those  convicted  of  felony  but 
one  year  and  a  day,  and  then  they  shall  be  delivered  to  the  lord  of  the  fee. 

XXXIX.  All  weirs  for  the  time  to  come  shall  be  demolished  in  the 
rivers  of  Thames  and  Medway  and  throughout  all  England  except  upon 
the  sea  coast. 

XL.  The  writ  which  is  called  praecipe  for  the  future  shall  not  be 
granted  to  any  one  of  any  tenement  whereby  a  freeman  may  lose  his  cause. 

XLI.  There  shall  be  one  measure  of  wine  and  one  of  ale  through  our 
whole  realm,  and  one  measure  of  corn;  that  is  to  say,  the  London- 
quarter  and  one  breadth  of  dyed  cloth  and  russets  and  haberjects;  that  is 
to  say,  to  ells  within  the  testa.    And  the  weights  shall  be  as  the  measures. 

XLI  I.  From  henceforward  nothing  shall  be  given  or  taken  for  a  writ 
of  inquisition  from  him  that  desires  an  inquisition  of  life  or  limbs  but 
shall  be  granted  gratis  and  not  denied. 

XLIII.  If  any  one  holds  of  us  by  fee  farm  or  socage  or  burgage,  and 
holds  lands  of  another  by  military  service,  we  will  not  have  the  wardship 
of  the  heir  or  land  which  belongs  to  another  man's  fee  by  reason  of 
what  he  holds  of  us  by  fee  farm,  socage  or  burgage.  Nor  will  we  have 
the  wardship  of  the  fee  farm,  socage  or  burgage,  unless  the  fee  farm  is 
bound  to  perform  military  service. 

XLIV.  We  will  not  have  the  wardship  of  an  heir,  nor  of  any  land 
which  he  holds  of  another  by  military  service,  by  reason  of  any  petit 
sergeanty  he  holds  of  us,  as  by  the  service  of  giving  us  daggers,  arrows 
or  the  like. 

XLV.  No  bailiff  for  the  future  shall  put  any  man  to  his  law  upon  his 
single  accusation,  without  credible  witnesses  produced  to  prove  it. 

XLVI.  No  freeman  shall  be  taken  or  imprisoned,  or  disseized  or  out- 
lawed, or  banished,  or  in  any  wise  destroyed,  nor  will  we  pass  upon  him 
or  commit  him  to  prison  unless  by  the  legal  judgment  of  his  peers  or 
by  the  law  of  the  land. 

XLVII.  We  will  sell  to  no  man,  we  will  deny  to  no  man,  nor  defer 
right  and  justice. 

XLVIII.  All  merchants  shall  have  safe  and  secure  conduct  to  go  out 
of  and  to  come  into  England,  and  to  stay  there;  and  to  pass  as  well  by 
land  as  by  water,  to  buy  and  sell  by  the  ancient  and  allowed  customs, 
without  any  evil  tolls  except  in  time  of  war,  or  when  they  shall  be  of 
any  nation  at  war  with  us. 

XLIX.  And  if  there  shall  be  found  any  such  in  our  land,  in  the  begin- 
ning of  a  war,  they  shall  be  attached  without  damage  to  their  bodies  or 
goods,  until  it  may  be  known  to  us,  or  our  chief  justiciary,  how  our 
merchants  be  treated  in  the  nation  at  war  with  us,  and  if  ours  be  safe 
there  they  shall  be  safe  in  our  land. 


MAGNA    CHART  A  1183 

L.  It  shall  be  lawful  for  the  time  to  come  for  anyone  to  go  out  of 
our  kingdom  and  return  safely  by  land  or  water,  saving  his  allegiance 
to  us,  unless  in  time  of  war  by  some  short  space  for  the  common  benefit 
of  the  kingdom;  except  prisoners  and  outlaws,  according  to  the  law  of 
the  land,  and  people  in  war  with  us,  and  merchants  who  shall  be  in  such 
condition  as  is  above  mentioned. 

LI.  If  any  man  hold  of  any  escheat,  as  of  the  manor  of  Wallingford, 
Nottingham,  Bologne,  Lancaster,  or  of  other  escheats  which  are  in  our 
hands,  and  are  baronies,  and  dies,  his  heirs  shall  not  give  any  other  relief 
or  perform  any  other  service  to  us  than  he  would  to  the  baron  if  the 
barony  were  in  possession  of  the  baron;  we  will  hold  it  after  the  same 
manner  the  baron  held  it. 

LII.  Those  men  who  dwell  without  the  forest  from  henceforth  shall  not 
come  before  our  justiciaries  of  the  forest  upon  summons,  but  such  as  are 
impleaded  or  are  pledges  for  any  that  were  attached  for  something  con- 
cerning the  forest. 

LIII.  We  will  not  make  any  justiciaries,  constables,  sheriffs,  or  bailiffs, 
but  what  are  knowing  in  the  law  of  the  realm  and  are  disposed  duly  to 
observe   it. 

LIV.  All  barons  who  are  founders  of  abbeys  and  have  charters  of  the 
king  of  England  for  the  advowson,  or  are  entitled  to  it  by  ancient  tenure, 
may  have  the  custody  of  these  when  void,  as  they  ought  to  have. 

LV.  All  woods  that  have  been  taken  into  the  forests,  in  our  own  time 
shall  forthwith  be  laid  out  again,  and  the  like  shall  be  done  with  the 
rivers  that  have  been  taken  and  fenced  in  by  us,  during  our  reign. 

LVI.  All  evil  customs  concerning  forests,  warrens,  and  foresters,  war- 
reners,  sheriffs  and  their  officers,  rivers  and  their  keepers,  shall  forthwith 
be  inquired  into,  in  each  county,  by  twelve  knights  of  the  same  shire, 
chosen  by  the  most  creditable  persons  in  the  same  county  and  upon 
oath,  and  within  forty  days  after  the  said  inquest,  be  utterly  demolished 
so  as  never  to  be  restored. 

LVII.  We  will  immediately  give  up  all  hostages  and  engagements  de- 
livered unto  us,  by  our  English  subjects,  as  securities  for  their  keeping 
the  peace  and  yielding  us  faithful  service. 

LVIII.  We  will  entirely  remove  from  our  baliwicks  the  relations  of 
Gerard  de  Athyes,  so  as  that  for  the  future  they  shall  have  no  baliwick 
in  England.  We  will  also  remove  Engelard  de  Cygony,  Andrew,  Peter 
and  Gyon  from  the  chancery,  Gyon  de  Cygony,  Geoffrey  de  Martyn  and 
his  brothers  and  his  nephew,  Geoffrey,  and  their  whole  retinue. 

LIX.  And  as  soon  as  peace  is  restored  we  will  send  out  of  the  kingdom 
all  foreign  soldiers,  crossbowmen  and  stipendiaries  who  are  come  with 
horses  and  arms  to  the  injury  of  our  peace. 

LX.  If  any  one  has  been  dispossessed  or  deprived  by  us,  without  the 
legal  judgment  of  his  peers,  of  his  lands,  castles,  liberties,  or  rights 
we  will  forthwith  restore  them  to  him;  and  if  any  dispute  arises  upon  this 
head,  let  the  matter  be  decided  by  the  five  and  twenty  barons  hereafter 
mentioned  for  the  preservation  of  the  peace. 


ii84  APPENDIX 

LXI.  As  to  all  those  things  of  which  any  person  has,  without  the  legal 
judgment  of  his  peers,  been  dispossessed  or  deprived,  either  by  King 
Henry,  our  father,  or  our  brother.  King  Richard,  and  which  we  have  in 
our  hands,  or  are  possessed  by  others,  and  we  are  bound  to  warrant 
and  make  good,  we  shall  have  a  respite,  till  the  term  usually  allowed  the 
croises ;  excepting  those  things  about  which  there  is,  a  suit  depending,  or 
whereof  an  inquest  hath  been  made  by  our  order  before  we  undertook 
the  crusade.  But  when  we  return  from  our  pilgrimage,  or  if  we  do  not 
perform  it,  we  will  immediately  cause  full  justice  to  be  administered 
therein. 

LXII.  The  same  respite  we  shall  have  for  disforesting  the  forest 
which  Henry,  our  father,  or  our  brother  Richard,  have  afforested ;  and 
for  the  wardship  of  the  lands  which  are  in  another's  fee,  in  the  same 
manner  as  we  have  heretofore  enjoyed  those  wardships,  by  reason  of  a 
fee  held  of  us  by  knight  'service ;  and  fpr  the  abbeys  founded  in  any 
other  fee  than  our  own,  in  which  the  lord  of  the  fee  claims  a  right.  And 
when  we  return  from  our  pilgrimage,  or  if  we  should  not  perform  it, 
we  will  immediately  do  justice  to  all  the  complaints  in  this  behalf. 

LXHI.  No  man  shall  be  taken  or  imprisoned  upon  the  appeal  of  a 
■woman  for  the  death  of  any  other  man  than  her  husband. 

LXIV.  All  unjust  and  illegal  fines  and  all  amercements  imposed  un- 
justly and  contrary  to  the  law  of  the  land  shall  be  entirely  forgiven;  or 
else  be  left  to  the  decision  of  the  five  and  twenty  barons,  hereafter  men- 
tioned, for  the  preservation  of  the  peace,  or  of  the  major  part  of  them, 
together  with  the  aforesaid  Stephen,  archbishop  of  Canterbury,  if  he 
can  be  present,  and  others  whom  he  shall  think  fit  to  take  along  with 
him ;  and  if  he  cannot  be  present,  the  business  shall  notwithstanding  go 
on  without  him.  But  so  that  if  one  or  more  of  the  aforesaid  five  and 
twenty  barons  be  plaintiffs  in  the  same  cause,  they  shall  be  set  aside,  as 
to  what  concerns  this  particular  affair,  and  others  be  chosen  in  their 
room,  out  of  the  said  five  and  twenty,  and  sworn  by  the  rest  to  decide 
that  matter. 

LXV.  H  we  have  dissiezed  or  dispossessed  the  Welsh  of  any  lands, 
liberties,  or  other  things  without  the  legal  judgment  of  their  peers,  they 
shall  immediately  be  restored  to  them.  And  if  any  dispute  arise  upon  this 
head,  the  matter  shall  be  determined  in  the  marches  by  the  judgment  of 
their  peers;  for  tenements  in  England,  according  to  the  law  of  England, 
for  tenements  in  Wales  according  to  the  law  of  Wales;  for  a  tenement 
of  the  marches  according  to  the  law  of  the  marches.  The  same  shall 
the  Welsh  do  to  us  and  our  subjects. 

LXVI.  As  for  all  those  things  of  which  any  Welsh  man  hath,  without 
the  legal  judgment  of  his  peers,  been  disseized  or  deprived  by  King 
Henry  our  father,'  or  our  brother  King  Richard;  and  which  we  either 
have  in  our  hands  or  others  are  possessed  of,  and  we  are  obliged  to 
warrant  it,  we  shall  have  a  respite  till  the  time  generally  allowed  the 
croises;    excepting   those    things    about    which    a    suit    is    depending,    or 


MAGNA   CHART  A  1185 

whereof  an  inquest  has  been  made  by  our  order,  before  we  undertook  the 
crusade.  But  when  we  return,  or  if  we  stay  at  home  and  do  not  perform 
our  pilgrimage,  we  will  immediately  do  them  full  justice  according  to  the 
law  of  the  Welsh  and  of  the  parts  aforementioned. 

LXVII.  We  will  without  delay  dismiss  the  son  of  Llewelin  and  all 
the  Welsh  hostages,  and  release  them  from  the  engagements  they  entered 
into  with  us  for  the  preservation  of  the  peace. 

LXVIII.  We  shall  treat  with  Alexander,  king  of  the  Scots,  concerning 
the  restoring  of  his  sisters  and  hostages  and  rights  and  liberties,  in  the 
same  form  and  manner  as  we  shall  do  to  the  rest  of  our  barons  of 
England;  unless  by  the  engagements  which  his  father,  William,  late  king 
of  Scots,  hath  entered  into  with  us,  it  ought  to  be  otherwise;  and  this 
shall  be  left  to  the  determination  of  his  peers  in  our  court. 

LXIX.  All  the  aforesaid  customs  and  liberties  which  we  have  granted 
to  be  holden  in  our  kingdom,  as  much  as  it  belongs  to  us  towards  our 
people,  all  our  subjects,  as  well  clergy  as  laity,  shall  observe,  as  far  as 
they  are  concerned  towards  their  dependents, 

LXX.  And  whereas  for  the  honor  of  God  and  the  amendment  of  our 
kingdom  and  for  quieting  the  discord  that  has  arisen  between  us  and 
our  barons,  we  have  granted  all  the  things  aforesaid ;  willing  to  render 
them  firm  and  lasting,  we  do  give  and  grant  our  subjects  the  following^ 
security ;  namely,  that  the  barons  may  choose  five  and  twenty  barons  of 
the  kingdom,  whom  they  think  convenient,  who  shall  take  care  with  all 
their  might  to  hold  and  observe  and  cause  to  be  observed  the  peace  and 
liberties  we  have  granted  them,  and  by  this  our  present  charter  con- 
firmed. So  as  that  if  we,  our  justiciary,  our  bailififs  or  any  of  our  officers,, 
shall,  in  any  case,  fail  in  the  performance  of  them  towards  any  person, 
or  shall  break  through  any  of  these  articles  of  peace  and  security,  and 
the  offense  is  notified  to  four  barons  chosen  out  of  the  five  and  twenty 
aforementioned,  the  said  four  barons  shall  repair  to  us,  or  our  justiciary, 
if  we  are  out  of  the  realm,  and  laying  open  the  grievance  shall  petition 
to  have  it  redressed  without  delay;  and  if  it  is  not  redressed  by  us,  or, 
if  we  should  chance  to  be  out  of  the  realm,  if  it  is  not  redressed  by  our 
justiciary,  within  forty  days,  reckoning  from  the  time  it  has  been 
notified  to  us,  or  to  our  justiciary  if  we  should  be  out  of  the  realm, 
the  four  barons  aforesaid  shall  lay  the  case  before  the  rest  of  the  five 
and  twenty  barons,  and  the  said  five  and  twenty  barons,  together  with 
the  community  of  the  whole  kingdom,  shall  distrain  and  distress  us 
all  the  ways  possible ;  namely,  by  seizing  our  castles,  lands,  possessions, 
and  in  any  other  manner  they  can,  till  the  grievance  is  redressed  ac- 
cording to  their  pleasure;  saving  harmless  our  own  person  and  the 
persons  of  our  queen  and  children.  And  when  it  is  redressed  they  shall 
obey   us   as   before. 

LXXI.  And  any  person  whatsoever  in  the  kingdom  may  swear  that 
he  will  obey  the  orders  of  the  five  and  twenty  barons  aforesaid  in  the 
execution  of  the  premises  and  that  he  will  distress  us  jointly  with  them 


ii86  APPENDIX 

to  the  utmost  of  his  power;  and  we  give  public  and  free  liberty  to 
any  one  that  will  swear  to  them  and  never  shall  hinder  any  person  from 
taking  the  same  oath. 

LXXII.  As  for  those,  our  subjects,  who  will  not  of  their  own  accord 
swear  to  join  the  live  and  twenty  barons  in  distraining  and  distressing  us, 
we  will  issue  our  order  to  make  them  take  the  same  oath  as  aforesaid. 

LXXIII.  And  if  any  one  of  the  five  and  twenty  barons  dies  or  goes 
out  of  the  kingdom  or  is  hindered  any  other  way  from  putting  the  things 
aforesaid  in  execution,  the  rest  of  the  said  five  and  twenty  barons  may 
choose  another  in  his  room  in  their  discretion,  who  shall  be  sworn  in 
like  manner  as  the  rest. 

LXXIV.  In  all  things  that  are  committed  to  the  charge  of  these  five 
and  twenty  barons,  if  when  they  are  all  assembled  together  they 
shall  happen  to  disagree  about  any  matter,  or  some  of  them  summoned 
will  not  or  cannot  come,  whatever  is  agreed  upon  or  enjoined  by  the 
major  part  of  those  who  are  present  shall  be  reputed  as  firm  and  valid 
as  if  all  the  five  and  twenty  had  given  their  consent,  and  the  aforesaid 
five  and  twenty  shall  swear  that  all  the  premises  they  shall  faithfully 
observe,  and  cause  with  all  their  power  to  be  observed. 

LXXV.  And  we  will  not  by  ourselves  or  others,  procure  anything 
whereby  any  of  these  concessions  and  liberties  be  revoked  or  lessened, 
and  if  any  such  thing  be  obtained,  let  it  be  null  and  void;  neither  shall 
we  ever  make  use  of  it  either  by  ourselves  or  any  other. 

LXXVI.  And  all  the  ill  will,  anger,  and  malice  that  hath  arisen  be- 
tween us  and  our  subjects,  of  the  clergy  and  laity,  from  the  first  breaking 
out  of  the  dissensions  between  us,  we  do  fully  remit  and  forgive.  More- 
over all  trespasses  occasioned  by  the  said  dissension  from  Easter  in 
the  sixteenth  year  of  our  reign,  till  the  restoration  of  peace  and  tran- 
quillity, we  hereby  entirely  remit  to  all,  clergy  as  well  as  laity,  and  so 
far  as  in  us  lies  do  fully  forgive. 

LXXVII.  We  have  moreover  granted  them  our  letters  patent,  testi- 
monial of  Stephen  lord  archbishop  of  Canterbury,  Henry  lord  archbishop 
of  Dublin,  and  the  bishops  aforesaid,  as  also  of  master  Pandulph  for 
the  security  of  the  concessions  aforesaid. 

LXXVIII.  Wherefore,  we  will,  and  firmly  enjoin,  that  the  church  of 
England  be  free,  and  that  all  men  in  our  kingdom  have  and  hold  all  the 
aforesaid  liberties,  rights  and  concessions,  truly  and  peacefully,  freely 
and  quietly,  fully  and  wholly,  to  themselves  and  their  heirs,  in  all  things 
and  places  forever,  as  is  aforesaid. 

LXXIX.  It  is  also  sworn,  as  well  on  our  part  as  on  the  part  of  the 
barons,  that  all  the  things  aforesaid  shall  faithfully  and  sincerely  be 
observed. 

Given  under  our  hand,  in  the  presence  of  the  witnesses  above  named, 
and  many  others,  in  the  meadow  called  Running  Mead  between  Windel- 
fore  and  Stanes,  the  fifteenth  day  of  June,  the  seventeenth  year  of  our 
reign. 


CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA 

PREAMBLE 

We  the  people  of  the  United  States  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the 
common  defense,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

ARTICLE  I 

Section  i.  All  legislative  powers  herein  granted  shall  be  vested  in  a 
congress  of  the  United  States,  which  shall  consist  of  a  senate  and  house 
of  representatives. 

Sec.  2.  The  house  of  representatives  shall  be  composed  of  members 
chosen  every  year  by  the  people  of  the  several  states,  and  the  electors  in 
each  state  shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  state  legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not  when  elected  be  an  inhabitant  of  that  state  in 
which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among  the  several 
states  which  may  be  included  within  this  Union  according  to  their  re- 
spective numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  three-fifths  of  air  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  congress  of  the  United  States,  and  within  every  subsequent 
term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  representatives  shall  not  exceed  one  for  every  thirty  thousand, 
but  each  state  shall  have  at  least  one  representative ;  and  until  such 
enumeration  shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  iRhode  Island  and  Providence  Plan- 
tations one,  Connecticut  five,  New  York  six,  New  Jersey  four,  Penn- 
sylvania eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  house  of  representatives  shall  choose  their  speaker  and  other 
officers,  and  shall  have  the  sole  power  of  impeachment. 

Sec.   3.  The   senate   of   the   United   States   shall   be   composed   of   two 

1 187 


ii88  APPENDIX 

senators  from  each  state,  elected  by  the  people  thereof,  for  six  years;  and 
each  senator  shall  have  one  vote.  The  electors  in  each  state  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numerous  branch  of 
the   state   legislatures/ 

Immediately  after  they  shall  be  assembled  in  consequence  of  the  first 
election,  they  shall  be  divided  as  equally  as  may  be  into  three  classes. 
The  seats  of  the  senators  of  the  first  class  shall  be  vacated  at  the  ex- 
piration of  the  second  year,  of  the  second  class  at  the  expiration  of  the 
fourth  year,  and  of  the  third  class  at  the  expiration  of  the  sixth  year,  so 
that  one-third  may  be  chosen  every  second  year;  .  .  .  When  vacancies 
happen  in  the  representation  of  any  state  in  the  senate,  the  executive 
authority  of  such  state  shall  issue  writs  of  election  to  fill  such  vacancies : 
provided,  that  the  legislature  of  any  state  may  empower  the  executive 
thereof  to  make  temporary  appointments  until  the  people  fill  the  vacancies 
by  election  as  the  legislature  may  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the  election 
or  term  of  any  senator  chosen  before  it  becomes  valid  as  a  part  of  the 
constitution.^ 

No  person  shall  be  a  senator  who  shall  not  have  attained  to  the  age 
of  thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and 
who  shall  not  when  elected  be  an  inhabitant  of  that  state  for  which  he 
shall  be  chosen. 

The  vice-president  of  the  United  States  shall  be  president  of  the 
senate,  but  shall  have  no  vote  unless  they  be  equally  divided. 

The  senate  shall  choose  their  other  officers,  and  also  a  president  pro 
tempore  in  the  absence  of  the  vice-president,  or  when  he  shall  exercise 
the  office  of  president  of  the  United  States. 

The  senate  shall  have  the  sole  power  to  try  all  impeachments.  When 
sitting  for  that  purpose  they  shall  be  on  oath  or  affirmation.  When  the 
president  of  the  United  States  is  tried,  the  chief  justice  shall  preside:  and 
no  person  shall  be  convicted  without  the  concurrence  of  two-thirds  of 
the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office  and  disqualification  to  hold  and  enjoy  any  office  of 
honor,  trust  or  profit  under  the  United  States;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law. 

Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for  Senators 
and  Representatives  shall  be  prescribed  in  each  state  by  the  Legislature 
thereof;  but  the  Congress  may  at  any  time  by  law  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  Senators.  The  Congress 
shall  assemble  at  least  once  in  every  year,  and  such  meeting  shall  be  on 
the  first  Monday  in  December,  unless  they  shall  by  law  appoint  a  different 
day. 

^  As  amended  in  1913. 


COXSTITUTIOX  OF  THE  UXITED  STATES  1189 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall  constitute 
a  quorum  to  do  business;  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of  absence  mem- 
bers, in  such  manner  and  under  such  penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds, 
expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as -may  in  their  judgment 
require  secrecy;  and  the  yeas  and  nays  of  the  members  of  either  house 
on  any  question  shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 
on  the  journal. 

Neither  house,  during  the  sessions  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting. 

Sec.  6.  The  Senators  and  Representatives  shall  receive  a  compensation 
for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  Treasury 
of  the  United  States.  They  shall  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance  at 
the  session  of  their  respective  houses,  and  in  going  to  and  returning  from 
the  same ;  and  for  any  speech  or  debate  in  either  house,  they  shall  not  be 
questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time ;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives,  but  the  Senate  may  propose  or  concur  with  amendments 
as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate  shall,  before  it  become  a  law,  be  presented  to  the  President  of 
the  United  States.  If  he  approve  he  shall  sign  it,  but  if  not,  he  shall 
return  it,  with  his  objections,  to  that  house  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their  journal,  and 
proceed  to  reconsider  it.  If,  after  such  reconsideration,  two-thirds  of 
that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  house,  by  which  it  shall  likewise  be  reconsidered; 
and  if  approved  by  two-thirds  of  that  house,  it  shall  become  a  law.  But 
in  all  such  cases  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  house  respectively.  If  any  bill  shall 
not  be  returned'by  the  President  within  ten  days  (Sundays  excepted)  after 
it   shall   have  been   presented  to   him,   the   same   shall   be  a  law,   in   like 


J 190  APPEXDIX 

manner  as  if  he  had  signed  it,  unless  the  Congress,  by  their  adjournment, 
prevent  its  return,  in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a  ques- 
tion of  adjournment),  shall  be  presented  to  the  President  of  the  United 
States,  and  before  the  same  shall  take  effect,  shall  be  approved  by  him, 
or,  being  disapproved  by  him,  shall  be  repassed  by  two-thirds  of  the 
Senate  and  House  of  Representatives,  according  to  the  rules  and  limita- 
tions prescribed  in  the  case  of  a  bill. 

Sec.  8.  The  Congress .  shall  have  power — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises;  to  pay  the  debts 
and  provide  for  the  common  defense  and  general  welfare  of  the  United 
States ;  but  all  duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States; 

To  borrow  money  on  the  credit  of  the  United   States ; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes ; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies,  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States ; 

To  establish  post  offices  and  post  roads ; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their  re- 
spective writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offenses  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years ; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
union,   suppress    insurrections    and    repel    invasions ; 

To  provide  for  organizing,  arming,  and  disciplining,  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  states  respectively,  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia  according  to  the 
discipline  prescribed  by  congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particula** 


COXSTITUTIOX  OF  THE  UNITED  STATES  1191 

states,  and  the  acceptance  of  congress,  become  the  seat  of  the  government 
of  the  United  States,  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  legislature  of  the  state  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards,  and 
other  needful  buildings ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  Vested  by  this 
constitution  in  the  government  of  the  United  States,  or  in  any  department 
or  officer  thereof." 

Sec.  9.  "The  migration  or  importation  of  such  persons  as  any  of  the 
states  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  congress  prior  to  the  year  one  thousand  eight  hundred  and  eight, 
but  a  tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  proportion  to 
the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state.  No 
preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  state  over  those  of  another;  nor  shall  vessels  bound  to, 
or  from,  one  state,  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law;  and  a  regular  statement  and  account  of  the 
receipts  and  expenditures  of  all  public  money  shall  be  published  from  time 
to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States :  and  no  per- 
son holding  any  office  of  profit  or  trust  under  them,  shall,  without  the 
consent  of  the  congress,  accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Sec.  10.  No  state  shall  enter  into  any  treaty,  alliance,  or  confederation; 
grant  letters  of  marque  and  reprisal;  coin  money;  emit  bills  of  credit; 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  grant  any  title  of  nobility. 

No  state  shall,  without  the  consent  of  the  congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws :  and  the  net  produce  of  all  duties  and 
imports,  laid  by  any  state  on  imports  or  exports,  shall  be  for  the  use  of 
the  treasury  of  the  United  States ;  and  all  such  laws  shall  be  subject  to 
the  revision  and  control  of  the  congress. 

No  state  shall,  without  the  consent  of  congress,  lay  any  duty  of 
tonnage,  keep  troops,  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  state,  or  with  a  foreign  power,  or 


1 1 92  APPENDIX 

engage  in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

ARTICLE  II 

OF  THE  EXECUTIVE 

Section  i.  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the  term  of 
four  years,  and,  together  with  the  Vice-President,  chosen  for  the  same 
term,  be  elected,  as  follows : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole  number  of  Senators 
and  Representatives  to  which  the  State  may  be  entitled  in  the  Congress; 
but  no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elector. 

[The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot 
for  two  persons,  of  whom  one,  at  least,  shall  not  be  an  inhabitant  of  the 
same  state  with  themselves.  And  they  shall  make  a  list  of  all  the  persons 
voted  for,  and  of  the  number  of  votes  for  each ;  which  list  they  shall  sign 
and  certify,  and  transmit,  sealed,  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  president  of  the  senate.  The  president  of 
the  senate  shall,  in  the  presence  of  the  senate  and  house  of  representa- 
tives, open  all  the  certificates,  and  the  vote  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  shall  be  the  president,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed;  and 
if  there  be  more  than  one  who  have  such  majority  and  have  an  equal 
number  of  votes,  then  the  house  of  representatives  shall  immediately 
choose  by  ballot  one  of  them  for  president;  and  if  no  person  have  a 
majority,  then  from  the  five  highest  on  the  list  the  said  house  shall  in 
like  manner  choose  the  president.  But  in  choosing  the  president  the 
votes  shall  be  taken  by  states,  the  representation  from  each  state  having 
one  vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  states,  and  a  majority  of  all  the  states  shall 
be  necessary  to  a  choice.  In  every  case,  after  the  choice  of  the  president, 
the  person  having  the  greatest  number  of  votes  of  the  electors  shall  be 
the  vice-president.  But  if  there  should  remain  two  or  more  who  have 
equal  votes,  the  senate  shall  choose  from  them  by  ballot  the  vice- 
president.]* 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes,  which  day  shall  be  the  same 
throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible 
to  the  office  of  President;  neither  shall  any  person  be  eligible  to  that 
office  who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and 
been  fourteen  years  a  resident  within  the  United  States. 

*See  Twelfth  Amendment. 


COXSTITUTION  OF  THE  UNITED  STATES  1193 

In  case  of  the  removal  of  the  President  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  vice-president;  and  the  congress  may 
by  law  provide  for  the  case  of  removal,  death,  resignation  or  inability, 
both  of  the  president  and  vice-president,  declaring  what  officer  shall  then 
act  as  president,  and  such  officer  shall  act  accordingly,  until  the  disability 
be  removed,  or  a  president  shall  be  elected.  The  president  shall  at  stated 
times  receive  for  his  services  a  compensation  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other  emolument 
from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office  he  shall  take  the  following 
oath  or  affirmation :  "I  do  solemnly  swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  president  of  the  United  States,  and  will  to 
the  best  of  my  ability,  preserve,  protect  and  defend  the  constitution  of 
the  United  States." 

Sec.  2.  The  president  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  states,  when 
called  into  the  actual  service  of  the  United  States ;  he  may  require  the 
opinion  in  writing  of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their  respective  offices,  and 
he  shall  have  power  to  grant  reprieves  and  pardons  for  offenses  Against 
the  United  States,  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 
concur ;  and  he  shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  senate  shall  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  supreme  court,  and  all  other  officers  of  the  United 
States  whose  appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law :  but  the  congress  may  by  law  vest 
the  appointment  of  such  inferior  officers  as  they  think  proper  in  the 
president  alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. 

The  president  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  congress  information 
of  the  state  of  the  union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient;  he  may  on  extra- 
ordinary occasions,  convene  both  houses,  or  either  of  them,  and  in  case 
of  disagreement  between  them  with  respect  to  the  time  of  adjournment, 
he  may  adjourn  them  to  such  time  as  he  shall  think  proper;  he  shall 
receive  embassadors  and  other  public  ministers ;  he  shall  take  care  that 
the  laws  he  faithfully  executed,  and  shall  commission  all  the  officers  of  the 
United  States. 

Sec.  4.  The  president,  vice-president  and  all  civil  officers  of  the  United 
States,  shall  be  removed  from  office  on  impeachment  for  and  conviction 
of  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 


1 194  APPENDIX 

ARTICLE  III 

OF  THE  JUDICIARY 

Section  i.  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court,  and  in  such  inferior  courts  as  the  congress  may  from 
time  to  time  ordain  and  establish.  The  judges  both  of  the  supreme  and 
inferior  courts  shall  hold  their  offices  during  good  behavior,  and  shall 
at  stated  times  receive  for  their  services  a  compensation  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Sec.  2,  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  constitution,  the  laws  of  the  United  States,  and  trea- 
ties made,  or  which  shall  be  made,  under  their  authority;  to  all  cases 
affecting  embassadors,  other  public  ministers  and  consuls ;  to  all  cases  of 
admiralty  and  maritime  jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party ;  to  controversies  between  two  or  more 
states ;  between  a  state  and  citizens  of  another  state ;  between  citizens  of 
different  states;  between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states,  and  between  a  state,  or  the  citizens  thereof,  and 
foreign  states,  citizens  or  subjects. 

In  all  cases  affecting  embassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  state  shall  be  party,  the  supreme  court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the 
supreme  court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions  and  under  such  regulations  as  the  congress  shall 
make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury;  and  such  trial  shall  be  held  in  the  state  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed  within  any  state,  the  trial 
shall  be  at  such  place  or  places  as  congress  may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  congress  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture 
except  during  the  life  of  the  person  attainted. 

ARTICLE  IV 

MISCELLANEpUS  PROVISIONS 

Section  i.  Full  faith  and  credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  state.  And 
the  congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Sec.  2.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in  another  state,  shall  on  demand 


COXSTITUTIOX  OF  THE  UNITED  STATES  1195 

of  the  executive  authority  of  the  state  from  which  he  fled  "be  delivered 
up  to  be  removed  to  the  state  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  state,  under  the  laws  thereof, 
escaping  into  another,  shall  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor  may  be  due. 

Sec,  3.  New  states  may  be  admitted  by  the  congress  into  this  union ;  but 
no  new  state  shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  state;  nor  any  state  may  be  formed  by  the  junction  of  two  or  more 
states,  without  the  consent  of  the  legislatures  of  the  states  concerned  as 
well  as  of  the  congress. 

The  congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States ;  and  nothing  in  this  constitution  shall  be  so  con- 
strued as  to  prejudice  any  claims  of  the  United  States  or  of  any  par- 
ticular state. 

Sec.  4.  The  United  States  shall  guarantee  to  every  state  in  this  union 
a  republican  form  of  government,  and  shall  protect  each  of  them  against 
invasion;  and  on  application  of  the  legislature,  or  of  the  executive  (when 
the  legislature  cannot  be  convened)  against  domestic  violence. 

ARTICLE  V 
The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or,  on  the 
application  of  the  Legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments,  which,  in  either  case,  shall 
be  valid  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three-fourths  of  the  several  States,  or  by 
conventions  in  three-fourths  thereof,  as  the  one  or  the  other  mode  of  rati- 
fication may  be  proposed  by  the  Congress;  provided  that  no  amendment 
which  may  be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article ;  and  that  no  State,  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI 

All  debts  contracted  and  engagements  entered  into  before  the 
adoption  of  this  Constitution  shall  be  as  valid  against  the  United  States 
under  this  Constitution  as  under  the  confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the  mem- 
bers of  the  several  State  Legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  the  several  States,  shall  be  bound 


1 196 


APPENDIX 


by  oath  or  affirmation  to  support  this  Constitution;  but  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

ARTICLE  VII 
The  ratification  of  the  conventions  of  nine  states  shall  be  sufficient  for 
the  establishment  of  this  constitution  between  the  states  so  ratifying  the 
same. 

Done  in  convention,  by  the  unanimous  consent  of  the  states  present, 
the  seventeenth  day  of  September  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  eighty-seven,  and  of  the  independence  of  the  United 
States  of  America  the  twelfth.  In  witness  whereof  we  have  hereunto 
subscribed  our  names. 

George  Washington, 

President,  and  Deputy  from  Virginia. 
Delaware 


New  Hampshire 
John  Langdon, 
Nicholas  Gilham. 

Massachusetts 
Nathaniel  Gorman, 
RuFus  King. 

Cotmecticut 
Wm.  Sam'l  Johnson, 
Roger  Sherman. 

New  York 
Alexander  Hamilton. 

New  Jersey 
WiL.  Livingston, 
Wm.  Patterson, 
David  Brearley, 
JoNA.  Dayton. 

Pennsylvania 
B.  Franklin, 
RoBT.  Morris, 
Thos.  Fitzsimons, 
James  Wilson, 
Thomas  MiPFLik, 
Geo.  Clymer, 
Jared  Ingersoll, 
Gouv.  Morris. 


Geo.  Read, 
John  Dickinson, 
Jaco.  Broom, 
Gunning  Redford,  Jr., 
Richard  Bassett. 

Georgia 
William  Few, 
Abr.  Baldwin. 

Maryland 
James  McHenry, 
pANL.  Carroll, 
Dan.  of  St.  Thos.  Jenifer. 

P^irginia 
John  Blair, 
James  Madison,  Jr. 

North  Carolina 
Wm.  Blount, 
Hu:  Williamson, 
Rich'd  Dobbs  Spaight. 

South  Carolina 
J.   Rutledge, 
Charles  Pinckney, 
Chas.  Cotesworth  Pinckney, 
Pierce  Butler. 
Attest:  William  Jackson,  Secretary. 


COXSTITCTIOX  OF  THE  UNITED   STATES  1197 

AMENDMENTS  TO  THE  CONSTITUTION 

Proposed  by  Congress  and  ratified  by  the  Legislatures  of  the  several 
states  pursuant  to  the  fifth  article  of  the  original  constitution. 

Article  I.  "Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the  free- 
dom of  speech,  or  of  the  press;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  government  for  a  redress  of  grievances. 

Article  II.  A  well-regulated  militia,  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

Article  III.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  man- 
ner to  be  prescribed  by  law. 

Article  IV.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures,  shall  not 
be  violated,  and  no  warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Article  V.  No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when 
in  actual  service  in  time  of  war  or  public  danger;  nor  shall  any  person  be 
subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of  life  or  limb; 
nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self, nor  be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law;  nor  shall  private  property  be  taken  for  public  use  without  just 
compensation. 

Article  VI.  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to"  be  informed  of  the  nature 
and  cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favor ;  and 
to  have  the  assistance  of  counsel  for  his  defense. 

Article  VII.  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved; 
and  no  fact  tried  by  jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the  common  law. 

Article  VIII.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Article  IX.  The  enumeration  in  the  constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparge  others  retained  by  the  people. 

Article  X.  The  powers  not  delegated  to  the  United  States  by  the  con- 
stitution, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states  re- 
spectively, or  to  the  people. 


1 198  APPENDIX 


«* 


Article  XL  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  commenced  or  prose- 
cuted against  one  of  the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state. 

Article  XII,  Sec.  i.  The  electors  shall  meet  in  their  respective  states 
and  vote  by  ballot  for  president  and  vice-president,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with  themselves ;  they 
shall  name  in  their  ballots  the  person  voted  for  as  president,  and  in 
distinct  ballots  the  person  voted  for  as  vice-president;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  president,  and  of  all  per- 
sons voted  for  as  vice-president,  and  of  the  number  of  votes  for  each,, 
which  lists  they  shall  sign  and  certify,  and  transmit,  sealed,  to  the  seat 
of  the  government  of  the  United  States,  directed  to  the  president  of  the 
senate.  The  president  of  the  senate  shall,  in  the  presence  of  the  senate 
and  house  of  representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number  of  votes  for 
president  shall  be  the  president,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  number  not  exceeding  three  on 
the  list  of  those  voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  representaition  from 
each  State  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the  House  of  Repre- 
sentatives shall  not  choose  a  President  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  fourth  day  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the  case  of  the  death  or 
other  constitutional  disability  of  the  President.  The  person  having  the 
greatest  number  of  votes  as  vice-president  shall  be  the  vice-president,, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed; 
and  if  no  person  have  a  majority,  then  from  the  two  highest  numbers  on 
the  list  the  Senate  shall  choose  the  vice-president;  a  quorum  for  the 
purpose  shall  consist  of  two-thirds  of  the  whole  number  of  Senators,  and 
a  majority  of  the  whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  vice-president  of  the  United  States. 

Article  XIII,  Sec.  i.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States  or  any  place  subject 
to  their  jurisdiction.* 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 

Article     XIV,*     Sec.     i.       All     persons     born     or     naturalized     in     the 

*  Declared  Adopted  Feb.  i8,  1865. 
'  Declared  Adopted  July  28,  1868. 


CONSTITUTION  OF  THE  UNITED  STATES  1199 

United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty  or  property,  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportiond  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  state,  excluding  Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors  for  President  and 
Vice-President  of  the  United  States,  representatives  in  Congress,  the 
executive  and  judicial  officers  of  a  State,  or  the  members  of  the  Legis- 
lature thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  state,  being 
twenty-one  years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other  crime,  the  basis 
of  representation  therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

Sec.  3.  No  person  shall  be  a  senator  or  representative  in  congress  or 
elector  of  president  or  vice-president,  or  hold  any  office,  civil  or  military, 
under  the  United  States,  or  under  any  state,  who,  having  previously  taken 
an  oath  as  a  member  of  congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  state  legislature,  or  as  an  executive  or  judicial 
officer  of  any  state,  to  support  the  constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  congress  may  by  a  vote  of  two- 
thirds  of  each  house  remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  state  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave; 
but  all  such  debts,  obligations  and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  congress  shall  have  power  to  enforce  by  appropriate  leg- 
islation the  provisions  of  this  article. 

Article  XV,  Sec.  i.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
state,  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Sec.  2.  The  congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 

(Declared  adopted  March  30,   1870.) 

Article  XVI.  The  Congress  shall  have  power  to  lay  and  collect  taxes 
on  incomes,  from  whatever  source  derived,  without  apportionment  among 
the  several  states  and  without  regard  to  any  census  or  enumeration. 

(iRatified  Feb'y,  1913.) 


INDEX 


Abd-al-Rahman  I  of  Spain,  423. 

Abd-al-Rahman  III  of  Spain,  424. 

Accessaries,  under  Chinese  law,  1105. 

Act  of  Mediation  (Swiss  Constitu- 
tion), 546. 

Ado-ption,  Babylonian  law  of,  1000. 

Adoption,  French  law  of,  11 17. 

Adoption,  German  law  of,   1172. 

Adoption,  Roman  law  of,  308,  1067. 

Adrogation,  Roman  custom  of,  307, 
1067. 

Adultery,  Babylonian  law  concern- 
ing, 998. 

Adultery,     Hindoo     law     concerning, 

1047. 
Adultery,  Roman  law  of,  1005. 
Aediles,  Roman  officers,  315. 
Aerarium,  Roman  city  treasury,  333. 
Aethelbert,  Laws  of,  664. 
African  despotisms,  91. 
African  tribes,  90, 
Agents,    Liabilities    of,    in    Babylon, 

997. 
Agricola,     Subjugation    of     England 

by,  653. 

Ahmenhotep,  king  of  Egypt,  127. 

Ahmose,  king  of   Egypt,   126. 

Aids,  incident  to   feudal  tenure,  368, 

677. 
Aids,    Provisions    of    Magna    Charta 

concerning,  1181. 
Akbar,  emperor  of  India,  181. 
Alani,  352. 
Alaric,  340,  35^. 

Albigensians,  Crusade  against,  578. 
Albiums  of  Roman  praetors,  335. 
Alboin,  king  of  the  Lombards,  353. 
Alemanni,  562. 
Alemanni,     first     appearance     of,    in 

Gaul,   350. 
Alexander  of  Macedon,  299. 
Alexander  of  Macedon,  Invasion  of 

India  by.   178, 
Alfonso  VI  of  Castile,  427. 
Alfred  of  England,  666. 
Alimony,     French     law     concerning, 

1117. 
Almoravids,    Invasion    of    Spain    by, 

427. 


Alms  giving  enjoined  by  the  Koran, 

159. 
Amendments   to  the   Constitution  of 

the   United   States,   830,  849,   1196, 

1 198. 
Amercements,    provisions    of    Magna 

Charta  concerning,  1181, 
America,  first  settlements  in,  913. 
American  Indians,  customs  of,  82. 
American  revolution,  823. 
American    revolution,    effects    of,    in 

France,  601. 
Amphyctionic    league,    principles    of, 

298. 
Andaman   islanders,    187. 
Angles,    settlement    of,    in    England, 

654. 
Anne,  Queen  of  England,  744, 
Annuities,     French    law    concerning, 

1 138. 
Annuities,    German    law    concerning, 

1 164. 
Apodektae   of   Athens,  289. 
Appeals    at    Rome    in    capital    cases, 

317. 
Appeals  at  Rome  from  tribunes,  315. 
Appenzell,  534,  537. 
Aqueducts  of   Peru,   117. 
Arabia,  155. 

Aragon,  Government  of,  429,  427,  433. 
Araucanians,  107. 
Archons  of  Athens,  282,  290. 
Areopagus,    senate    of    Athens,    283, 

290  294. 
Argentine   Republic,   Constitution  of, 

921. 
Argentine    Republic,    Revolution    of, 

1810,  916. 
Aristides   of   Athens,   294. 
Aristogiton  of  Athens,  287. 
Armagnacs,   invasion  of   Switzerland 

by,  538. 
Armenian  village,  ancient,  140. 
Arminius,   confederation    formed  by, 

470. 
Army  of  Germany,  504. 
Army,  paid  legions  at  Rome,  325. 
Army,    no    standing,    in    Switzerland, 

549. 


1 201 


1202 


INDEX 


Army  of  the  United  States,  889. 

Arrondissements,  French,  644. 

Artel,  'Russian  association  of  work- 
ingmen,  403. 

Articles  of  faith  of  Henry  8th  of 
England    707. 

Artillery  at  battle  of  Crecy,  694. 

Aryan  invasion  of  India,   172. 

Assembly  of  Notables  called  by  Louis 
XVI  of  France,  602. 

Ashikaga  of  Japan,  256. 

Aso'ka,  rule  of  in  India,  179. 

Assignments  for  the  benefit  of  credi- 
tors  in   France,    1128. 

Assignment  of  claims  in  Germany, 
1151. 

Assembly,  National  of  Denmark, 
466. 

Assembly,   National,   of  France,  605. 

Assignats,   issues  of  French,  626, 

Astronomy,  Egyptian  knowledge  of, 
129. 

Ataulphus,  King  of  Visigoths   420. 

Athens,  ancient,  281. 

Athelstan,  King  of  England,  ^'j. 

Attila,  562. 

Augsburg  confession,  486. 

Augustus  Caesar,  rule  of,  332. 

Australia,  native  tribes  of,  81. 

Australia,  government  of,  TJ"]. 

Austria,  470,  490,  498,  508. 

Austria-Hungary,  constitution  of, 
Sio. 

Auto-da-fe  of  the  Inquisition,  436. 

Azincourtj  battle  of,  586, 

Aztec  calendar,  105. 

Aztecs,  cannibalism  of  the,   102,  104. 

Aztecs,  courts  of,  loi. 

Aztecs,  government  of,   100. 

Aztecs,  laws  of,  written  and  pub- 
lished, 100. 

Aztecs,  priesthood  of,  102. 

Aztecs,  religious  rites  of,   102. 

Aztecs,  slavery  among,  loi. 

x\ztecs,  taxes  of,  102. 

Babylon,  arts  and  industries  of,  139, 

141. 
Babylon,  laws  of  Hammurabi  of,  139, 

994- 

Babylon,  laws  of,  mentioned  by  Her- 
odotus,  139- 

Babylon,  written  language  of,  924. 

Balances  of  power  under  Chinese 
emperors,  222. 

Ball,  John,  teachings  of,  694. 

Bamboo  used  in  Chinese  punish- 
ments, 1084. 


Bank  of  England,  incorporation  of, 
740. 

Banks,  state,  in  the  United  States, 
871. 

Barons,  feudal,  privileges  and  func- 
tions of  in  France,  379. 

Barons,  five  and  twenty  to  enforce 
Magna    Charta,    1185. 

Basil,  Monastic  code  o'f,  367. 

Bastile,  storming  of  the,  610. 

Bayazid  ist  of  Turkey,  268. 

Begging  by  Hindoo  students,  1013. 

Belgium,  independence  of,  estab- 
lished, 516. 

Belgium,  constitution  of,  519. 

Benedict,  monastic  code  of,  366. 

Benefits,  German  law  of  unjustified, 
1 158. 

Bern,  city  government  of,  533. 

Bern,  International  Postal  Union  at, 
558. 

Bernadotte,  King  of  Sweden,  465. 

Betrothal,  German  law  of,   1166. 

Betting,  German  law  concerning, 
1 1 56. 

Bills  of  rights  in  American  Consti- 
tutions, 826,  835. 

Biron,  trial  of,  590. 

Black  Act,  English  penal  statute,  758. 

Black  death  in  France,  583. 

Boc-lands  of  Saxons,  661. 

Boniface,  Pope,  claims  of,  to  temp- 
oral power  in  France,  580. 

Boni  Mores,  in  Roman  Law,  307. 

Book  of  Changes,  Chinese  classic, 
204. 

Boston  massacre,  819. 

Brahmia,  Hindoo  account  of  birth  of, 
1006. 

Brahmans,  caste  in  India,  1007. 

Brahmans,  duties  of,  198,  1008. 

Brahmans,  rules  of  conduct  of,  and 
means  of  gaining  a  living,  1018. 

Brazil,  constitution  of,  915,  921, 

Brazil,  discovery  of,  914. 

Brazil,  Portuguese  monarchy  in,  447, 
915. 

Bribery  of  members  of  parliament  in 
England,   731. 

Bribery,  punishment  of  in  China, 
1 1 10. 

Britain  as  a  Roman  province,  653. 

British  dependencies,  government  of, 
177. 

British  Empire,  theories  of  govern- 
ment in,  932. 

Brun,   Rudolph,  332. 

Buddhism,   doctrines   of,   177. 


INDEX 


1203 


Buddhism,      introduction       of       into 

China,  210. 
Buddhism,       introduction       of      into 

Japan,   253. 
Buddhist  great  councils,  179. 
Biirgermeister  of  Zurich,  ^32. 
Buenos  Ayres,  settlement  of,  917. 
Burgundians,  562,  586. 
Burials,  French  law  relating  to,  11 15. 

Caaba,  made  the  holy  house  by  Mo- 
hammed,   167. 

Cabinet,  British,  774. 

Cadis,  Mohammedan  judges,   169, 

Caesar,  accession  of,  to  power,  s^. 

Caesar,  campaign  of  in  Gaul,  561. 

Caesar,  description  of  England  by, 
652. 

Caliphs,    administration   of,    168. 

Caliphs,  first  four,  elected  by  com- 
munity of  Medina,  168. 

Calmar,  union  formed  at,  456. 

Calvin,  John,  542. 

Canada,    750,    777,   816. 

Canal,   Grand  of   China,  218. 

Canon  law,  346,  677. 

Canulean  law,  317. 

Capacity  to  contract  in  Germany, 
1 148. 

Capet,  Hugh,  election  of,  as  king  of 
France,  572. 

Capitularies  of  Charlemagne,  371, 
569. 

Capitularies  of  Charles  the  Bald,  570. 

Carlovingians,  division  of  inheritance 
of  power  of,  568. 

Carnot,  624. 

Carolina,  797,  805. 

Carriers,  liabilities  of,  in  Babylon, 
997. 

Carthage,  destruction  of,  326. 

Caste,  absence  of,  in  China,  242. 

Caste,  Hindoo  laws  of,   1055. 

Caste,  origin  of  in  India,  174. 

Caste.   Subdivisions  of,   183,   1055. 

Castile,   427,   433- 

Castile,  government  of,  430. 

Catalonia.    Republic   of,  441. 

Celts  in   British  isles,  652. 

Censors,  Roman,  powers  of,  317. 

Census  in  ancient  Peru,  112. 

Ceorls,    Saxon    freemen,  652. 

Central  America.  922. 

Cerdic  &  Cynric,  leaders  of  West 
Saxons,  657. 

Chaldeans,    136. 

Charlemagne,   357,   411,    567. 

Charlemagne  in  Germany,  473. 


Charlemagne   in    Spain,  425. 

Charles  I  of  England,  719,  725. 

Charles  II  of  England,  729. 

Charles  V,  Emperor,  439,  485,  514. 

Charles  XII  of  Sweden,  460. 

Charles  X  of  France,  633. 

Charles    Martel,   357. 

Charter   of   Bergen,  455. 

Charter  of  Carolina,  797. 

Charter  of  Christopher  II  of  Den- 
mark, 454. 

Charter  of   Connecticut^   796. 

Charter  of  East  India  Company,  716. 

Charter,  Forest,  686. 

Charter  of  French  communes,  579. 

Charter  of    Georgia,   805. 

Charter  of  Henry  I  of  England,  678. 

Charter  of  Henry  III  of  England, 
686. 

Charter  of  John  of  England,  684. 

Charter  of   London,  684. 

Charter  of  Maryland,  794. 

Charter  of  Massachusetts,  792,  804. 

Charter  of  Pennsylvania,  798. 

Charter  of  Plymouth,  for  New  Eng- 
land, 790. 

Charter  of  Rhode  Island,  795,  825. 

Charter  of   Schwyz,  525. 

Charter  of  Trondheim,  455. 

Charter  of  Virginia,  787. 

Charter  to  Walter  Raleigh,  786. 

Charters  of  corporations  in  the 
United  States.  907. 

Chau  dynasty  in  China,  208. 

Checks  and  balances  of  governmental 
powers,  74. 

Child  labor,  provisions  of  Swiss  con- 
stitution concerning,  550. 

Children,  French  law  of  rights  and 
obligations  of,   11 16. 

Children,  German  law  of  legitimacy, 
1 1 70. 

Children,  German  law  of  parental 
power  over,  961. 

Children.  German  law  concerning 
illegitimate,    1171. 

Chile,  constitution  of,  921. 

Chile,    revolution    in,   916. 

Chile,  slavery  abolished  in,  922. 

China,   201. 

China,     provincial    governments     of, 

2.34- 
China,  provincial  officers  of,  237. 

Chinese  Board  of  Rites,  227. 

Chinese  classics,  204,  207, 

Chinese  cabinet,   224. 

Chinese  censorate,  231. 

Chinese  council  of  state,  225. 


I204 


INDEX 


Chinese  court  of  revision,  232. 
Chinese  edicts,  publication  of,  226. 
Chinese  Imperial  Academy,  233. 
Chinese   laws,   243. 
Chinese  penal  code,  240,  1081. 
Chinese     privileged     classes     exempt 

from   certain  punishments,   1089. 
Chinese  wall,  construction  of,  209. 
Chinese  written  language,  924. 
Chinnook  Indians,  94. 
Christ,  teachings  of,  361. 
Christliche   Vereinigung,    Swiss,   541. 
Christian  religion  in  Japan,  257. 
Christopher  II  of  Denmark,  charters 

of,  454. 
Chun  Tsieu,  Chinese  classic,  207. 
Church   of   Rome,   abuses   of   power 

by,  483. 
Church  of  Rome,  acquisition  of  land 

by,  414. 
Church    of    Rome,    democratic    spirit 

of,  272>' 

Church  of  Rome,  growth  of,  362. 

Church  of   England,  707. 

Church  of  England,  rights  of  guar- 
anteed by  Magna  Charta,  1187. 

Church  of  England  in  the  United 
States,  862. 

Cinna,  Roman  general,  328. 

Cities,   democratic  spirit  of,  534. 

Cities,  free  of  Italy,  411. 

Cities,  government  of  in  England, 
760. 

Cities,  government  of  in  the  United 
States,  842,  857. 

Cities  of  Missouri  frame  their  own 
charters,   877. 

Cities  of  Russia,  385,  388. 

Cities   of   United   States,  growth  of, 

857. 

Civil  Status  under  French  code,  1115. 

Civilization  of  India  compared  with 
Europe,  199. 

Clans  in  China,  240, 

Clarendon,    constitution   of,  680. 

Cleisthenes,  legislation   of,  288, 

Clergy  forbidden  to  marry  by  Greg- 
ory 3rd,  340. 

Clergy  claims  of  English,  681. 

Clerks  of  Chinese  courts  punished 
for  wrong  judgments,   11 12. 

Clients,  Roman,  302. 

Clovis,  king  of  the  Franks,  354,  563. 

Cnut  of  Denmark,  451. 

Cnut  in  England,  669. 

Code,  Babylonian  of  Hammurabi, 
139,  094. 

Code,  Burmese,  188. 


Code,  civil  of  France,  618,  629,  1114. 
Code,  Civil  of  Germany,  1146. 

Code  of  Knighthood  in  France,  573.. 

Code    establishments     of    St.     Louis„ 
578. 

Code  of  Manu,  1005. 

Code,  Napoleon,  629. 

Codrus,  king  of  Athens,  2^2. 

Colombia,  constitution  of,  921. 

Colombia,  compulsory  school  systenu 
of,  919. 

Coloni,   Roman,  343. 

Comanche    Indians,   87. 

Comanche    Indians,    confederacy    of,. 
94. 

Comanche  Indians,  use  of  fire  signals 
'by,  94. 

Comanche   Indians,   Tribal   organiza- 
tion and  customs  of,  93. 

Combination,    genius    of    the    Dutch- 
for,  518. 

Combinations,    34,    978. 

Combinations,   business,   in    England,. 
780. 

Combinations,    lack    of    capacity    of 
Hindoos  for,   199. 

Comitium,     proceedings     in     Roman,. 
^312,   319. 

Comitium,    not    consulted    after    Ti- 
berius,  Z2(7- 

Committee  of  Safety,  French,  618. 

Commons,    English    House    of,    687, 
690,  724,  759. 

Commune  of   Paris,  615. 

Community     Property,     French     law 
concerning^    1131. 

Community    of    ownership,    German 
law  of,  1 169. 

Competitive    examinations    for    office 
in   China,   1091, 

Comipton,  invention  of  spinning  mule 
•by,  755.. 

Compromises,  French  law  of,  1140. 

Concilium  Plebis,  proceedings  in  Ro- 
man,  320. 

Concordat  of  Worms,  479. 

Conduct,  rules  of,  enjoined  on  Brah- 
mins, 1018. 

Confarreatio,  Roman  marriage  cere- 
mony, 307. 

Confederation,  American,  827. 

Confederation  of  New  England  colo- 
nies,  810. 

Confederation  of  the  Rhine,  497. 

Confederation,  Swiss,  527,  540. 

Confucius,  206. 

Confucius,  Principles  of  government 
of,  207. 


INDEX 


1205 


Congress,  first  American,  818. 

Congress,  American,  of   1774,  821. 

Congress  of  the  American  Confeder- 
ation, 828. 

Congress  Provisions  of  the  U.  S. 
Constitution  concerning,  1188,  1191. 

Connecticut,     Constitution     of,     794, 

839. 
Conquests,  Spanish,  m  America,  913. 
Constantine,  Roman  emperor,  340. 
Constantinople,    taken    by    Muhamed 

n,  346. 
Constitution      of      Austria-Hungary, 

509. 

Constitution  of  Belgium,  519. 

Constitution,  British,  744,  774,  y^. 

Constitution   of    Clarendon,   680. 

Constitution  of  Connecticut,  794,  839. 

Constitution  of  Denmark,  466, 

Constitution  of  France,  of  I799 — 
6285  of  1814 — 63.1,  of  1848 — 636,  of 
1852-638. 

Constitution,  German  Empire,  500. 

Constitution,    Helvetic,    545. 

Constitution,  Holland,  517; 

Constitution,  Italy,  417. 

Constitution,  Japan,  262, 

Constitution  of  Latin  American 
States,  921. 

Constitution,  Norway,  468. 

Constitution,  Spain,  445,  496. 

Constitution,  Sweden,  467. 

Constitution,   Switzerland,  548. 

Constitution,  United  States,  830, 
1188. 

Constitutional  charter  of  France,  632. 

Constitutions,  state  adopted  by 
American  states  at  time  of  revo- 
lution, 824. 

Consuls,  French,  627. 

Consuls,  Roman,  establishment  of 
office  of,  312. 

Contracts,  German  law  of,  1148,1150. 

Contracts,  French  law  of,  1127. 

Contracts,   Roman  law  of,   1072. 

Contracts,  general  view  of  the  law 
of,  971. 

Convicts,  sale  of,  to  Virginia  plan- 
ters, 790. 

Cordova,  Republic  and  seat  of  learn- 
ing, 423,  426. 

Corea,  invasion  of,  by  Japan,  253. 

Corn  laws  in  England,  755. 

Corn  laws,  England  repeal  of,  761. 

Coronation  oath  of  King  and  Queen 
of  England,  734. 

Corporations  in  Germany,  1146. 


Corporations    created    under    Henry 

8th  of  England,  709. 
Cortes  of   Castile,  428. 
Cortes  of  Aragon,  429. 
Cortes  of  Spain,  447. 
Cortes  of   Portugal,  448. 
Counts  of  Holland,  513. 
County    governments    in    the    United 

States,  843,  854. 
Courtiers,  character  of,  according  to 

Montesquieu,  599. 
Courts  of  Belgium,  523,  525. 
Courts  of  Egypt,   131. 
Courts  of  France,  645. 
Courts  of  Germany,  505. 
Courts    of    Great    Britain,    672,    677, 

691,   7(>3,   7^7- 
Courts  of  Italy,  417. 
Courts  of  Norway,  469. 
Courts  of  Peru,  no. 
Courts  of  Star  Chamber,  704,  722. 
Courts,  under  Cromwell,  727. 
Courts  of  United  States,  895,  908. 
Court  procedure  in  England,  743,  767. 
Covenant  of  Plymouth  colonists,  702. 
Cranmer,  Archbishop  of  Cantenbury, 

706. 
Creation,  Hindoo  account  of,  1006. 
Crimes     and     punishments,     general 

view  of,   16. 
Crimes,  national,  25. 
Cromwell,   Oliver,  725. 
Crown   lands   and  buildings,   sale  of 

French,  611. 
Crusade,  576. 
Crusade     against     the     Albigensians, 

578. 
Crusade,  Richard  of  England,  in,  682. 
Cshatriyas,   Hindoo   caste,   duties   of, 

1008. 
Cuba,  settlement  of,  917. 
Cultivation    of    land    in    China,    law 

concerning,    1096. 
Curators,  German,  1172. 
Curators,   Romian,    1067. 
Curiae,  Roman  organization  by,  304. 
Customs  as  law  in  India,  1008.  ^ 
Customs  precede  law,  80.     - 
"^Cylon  of  Athens,  283. 

Daimios,  power  of,  In  Japan,  258. 
Damathat,   Burmese  code,   188. 
Danegeld    imposed   by   Cnut,   670. 
Danes,  advent  of,  in  England,  665. 
Dark  ages  in  Europe,  575. 
Day,   Chinese   divisions   of,   1090. 
Death    penalty    abolished    in    Brazil 
and  Venezuela,  922. 


I206 


INDEX 


Death     penalty     in     Babylon,     under 

code  of  Hammurabi,  994. 
Death,  presumption  of,  from  absence 

under  German  code,  1139. 
Debt,  public,  of  England,  744,  754. 
Debts,    p^ayment    of,    enforced    with 

ibamiboo  in  China,  1082. 
Debts,  payment  of,  enforced  in  early 

Rome,  1003. 
Decemvirate   at  Rome,   316. 
Declaration      of      independence      of 

American   states,  ^2^. 
Declaration    of    rights    of    man    by 

French  Assembly,  608. 
Declaration    of    rights    in    American 

constitutions,  826,  835. 
Delaware,    organization   of,   803. 
Demes  of  Athens,  288. 
Democracies  in  Swiss  states,  535. 
Democracies,  political  power  in,  930. 
Denmark,  450. 
Denmark,     change     of,     to     absolute 

monarchy,  459. 
Departments      of      government      in 

China,  224. 
Departments      of      government      in 

Japan,  261. 
Deposit,  French  law  of,   1128,  1137. 
Deposit,  German  law  of,  1154. 
Deposit,  Hindoo  law  of,  1043. 
Descent  and  distribution  of  property 

in  the  United  States,  893. 
Despotisms,  simple,  91. 
Dharma    Sastras,    Hindoo    law,    175, 

1005. 
Diet,  national,  of  Denmark,  459,  466. 
Diet,   German,  497. 
Diet  of  Japan,  262. 
Diet  of  Poland,  494. 
Diet,  national,  of  Sweden,  460,  467. 
Diet,  early  Swiss,  .S39,  54^. 
Digger   Indians   without   government 

or  laws,  80. 
Dikasts,   Athenian   tribunals,   294. 
Diocletian,  Roman  emperor,  339,  351. 
Diocletian    changes    in    Roman    gov- 
ernment made  by,  339. 
Direct  legislation,  939. 
Directory,  French,  622. 
Divorce  laws  of  Aztecs,  104. 
Divorce  laws  of  Babylon,  998. 
Divorce  laws  of  China,  iioo. 
Divorce  laws  of  France,  11 17. 
Divorce  laws  of  Germany,   1170. 
Divorce   laws,    Hebrews,    145. 
Divorce  laws,  Mohammed,  162. 
Divorce     laws,     Twelve     Tables     of 

Rome,   IOCS. 


Divorce  laws,  United  States,  892. 

Divorce,  diversity  in  laws  concerning, 
15,  960. 

Doge  of  Venice,  powers  of,  372. 

Domesday  book  of  William  the 
Conqueror,  675. 

Domicil,  French  law  of,  11 15. 

Domestic  relations,  promiscuous  in- 
tercourse among  lowest  savages,  81. 

Domestic  relations,  generalizations, 
959- 

Domestic  relations  of  Saxon  invad- 
ers of  Britain,  658. 

Donations,  French  law  concerning, 
1 125. 

Dorian  settlement  in  Greece,  276. 

Dotal  property,  French  law  concern- 
ing, 1 133. 

Dowery  in  Babylon,  1000. 

Dozsa,  Hungarian  leader,  507. 

Draco,  code  of,  282. 

Dravidian  inhabitants  of  India,  173, 
187. 

Druids,  authority  and  customs  of, 
560,  653. 

Drujina  of  early  Russian  rulers,  385. 

Duelists  in  Missouri,  848. 

Duma,    Russian   legislature,   393. 

Dutch  East  India  Company,   515. 

Dutch  in  Japan,  257. 

Dvorniastvo,  Russian  Nobility,  396. 

Dwellings,  act  concerning  artisan's 
and  laborer's  in  England,  772. 

Dykes,  laws  of  Babylon  relating  to, 
996. 

Dykes  of  Holland,  518. 

Ealdormen,   Saxon  leaders,  655,  660. 

East  India  Company,  English  chart- 
ered, 716. 

East  India  Company,  English  new, 
718,  741. 

East  India  Company,  English,  wind- 
ing up  of,  762. 

East  India  Company,  importations 
of  tea   into   colonies  by,  820. 

Eating  swines  flesh  and  diseased 
meat   prohibited  by   Koran,    165. 

Eating,  Hindoo  rules  concerning, 
1023. 

Ecuador,  constitution  of,  921. 

Edict  of  Louis  XV  of  France,  599. 

Edict  of  Nantes,  promulgation  of, 
591. 

Edict  of  Nantes,  revocation  of  595. 

Educational  influences  of  first  Cru- 
sade, 577. 

Edward  I  of   England,  689. 

Edward  II   of   England,  692. 


INDEX 


1207 


Edward  III  of  England,  583,  586,  692. 

Edward  IV  of  England,  699. 

Egbert,  extension  of  power  of,  665. 

Egypt,  astronomy  in  ancient,   120. 

Egypt,  care  of  the   dead  in,   122. 

Egypt,  classical  age  XII  dynasty,  126. 

Egypt,  classes  of  people  in,   i^. 

Egypt,  early  kings  of,  122. 

Egypt,  government    unmilitary,    122, 

Egypt,  Hyksos  or  shepherd  kings  of, 
126. 

Egypt,  judges  of,  123,  131. 

Egypt,  land  titles  in,  127. 

Egypt,  medical  knowledge  in,   129. 

Egypt,  Polygamy  among  the  rich, 
128. 

Egypt,  provinces  of  old  empire,  122, 

Egypt,  Pyramids    of    Gizeh,    123. 

Egypt,  schools  of,   129. 

Egypt,  scribes   of,    128. 

Egypt,  trial  of  robbers  of  tombs,  129. 

Egypt,  written    language   of,   924. 

Electoral  college  of  old  German  Em- 
pire, yjd,  480. 

Elizabeth  of  England,  711. 

Emigrants,  return  of  French,  629. 

Empress  Dowager  of  China,  224, 

Empson  and  Dudley,  extortions  of, 
704. 

England,  Inhabitants  of,  as  described 
by  Caesar,  652. 

England,  introduction  of  Christian 
religion  in,  655. 

Entailment  of  estates,  690, 

Eorls,  Saxon  chiefs,  660. 

Ephetae,  judges  of  Athens,  283. 

Ephors  of  Sparta,  277,  293. 

Equador,   constitution  of,  921. 

Escheats    incident    to    feudal    tenure, 

369. 
Eskimos,  80. 
Ethelbert,  laws  of,  664. 
Evidence,  rules  of,  62. 
Evidence,    rules   of    in    French   code, 

1 136. 
Evidence,  rules  of  in  code  of  Manu, 

1038. 
Evkof,    Turkish   department   of,   271. 
Examinations,  Chinese  literary,  234. 
Examinations,    Chinese,    of    officials, 

1092. 
Exchequer,  English,  first  required  to 

render  account,  y^^. 
Excommunication,    consequences    of, 

380. 
Executive   functions,  70. 
Executive    power    under  constitution 

of  the  United   States,  850. 


Executions  in  time  of  Henry  VIII  of 

England,  706. 
Exemption     laws      of      the      United 

States,   894. 
Expediency,   limitations    on    imposed 

by   morality,  26. 

False  accusations,  punishment  for  in 
Babylon,  998. 

Family  council,  French  law  concern- 
ing the,  1 1 18. 

Family  council,  German  law  concern- 
ing the,  1 1 72. 

Family,  early  Roman,  302. 

Family,  demoralization  of,  in  Cae- 
sars' time,  329. 

Family,  Irish  joint,  657, 

Family,  public  regulation  of  the,   12. 

Family     relations,     laws     governing, 

959. 

Fas  in  Roman  law,  306. 

Fashions   among    savages,   80. 

Father,  power  of  Roman,  302,  338, 
1004. 

Fealty,    oath    of,    required    by    King 

.   Edmund,  669. 

Female    suffrage    in    Norway,   470. 

Ferdinand  and  Isabella  of  Spain, 
433-438. 

Feudalism,  rise   of,  370,   571. 

Feudalism,  tenures  of  land,  under, 
368. 

Feudalism,  decay  of,  379,  588,  757. 

Feudalism  in  China,  205. 

Feudalism  in  England,  d'^z,  ^7(>. 

Feudalism  in  Germany,    473,    493. 

Feudalism  in  Italy,  411. 

Feudalism,  in  Japan,  257. 

Feudalism  in  Spain,   428. 

Feudalism,  in  theories    of,   369. 

Fief,  advantages  of  converting  allo- 
dial  lands   into,   370,    571, 

Fief,  how  conferred,  368. 

Fines,  incident  to  feudal  tenure,  369. 

Fines  imposed  at  Rome,  314. 

Fine,  Irish  joint  family,  657. 

Fiscus,    treasury   of    Roman    empire, 

Flanders  and  Flemish  towns  in  thir- 
teenth   century,    579. 

Flight  of  Louis  XVI  of  France,  613. 

Florida,  acquisition  of,  from  Spain, 
832. 

Folk-lands  of  Saxons,  661. 

Food,  Hindoo  laws  relating  to,  1023. 

Forms  of  government,  changes  in, 
939. 

France,  559. 


I208 


INDEX 


France,  early  inhabitants  of,  559. 

France,  present  government  of,  642. 

Franks   in   France,   562. 

Franks  in  Germany,  355,  472,  477. 

Franks,  invasion  of  Spain  by,  420, 
562. 

Fraud,  punishment  of,  in  China,  iioi. 

Frauds  and  perjuries,  passage  of  first 
statute  of,  729. 

Fredegonde  and  Brunechild,  story  of, 
563. 

Frederick  of  Prussia,  488. 

Free  cities  of  Italy,  ZT^-,  41 1- 

Freedom  of  contract,  972. 

French  and  Indian  war,  814. 

French  revolution,  606. 

French  revolution,  effects  of  in  Eng- 
land, 752. 

Fujiwara  family  in  Japan,  253. 

Functions  of  government,  changes  in, 
31,  52,  939. 

Futai,  Chinese  governor,  234. 

Gaming  contracts,  French  law  con- 
cerning,   1 138. 

Gaming  contracts,  German  law  con- 
cerning,  1 156. 

Gauls,  ancient,  559. 

Gautama,  life  and  teachings  of,  177. 

Gautama,  spread  of  religious  doc- 
trines of,  in  China,  210. 

Gavelkind,  custom  of  Saxons,  656. 

Gens  in  ancient  Rome,  302. 

Gentes   in   Athens,   288. 

George  I   of    England,   746. 

George  II  of  England,  748, 

George  III  of  England,  750. 

Georgia,  charter  for,  to  John  Perci- 
val,  805. 

German  emperors,  election  of,  476, 
480. 

German    tribes,    conquests    by,    471, 

477. 

Germans,  ancient,  ^"j. 

Germans,  purity  of  domestic  life  of, 
478. 

Germany,  social  organization  of  an- 
cient, 470. 

Germany,  Roman  power  in,  470. 

Gesiths,   Saxon,  660. 

Genghis  Kahn,  conquests  of,  213. 

Genseric,  King  of  Vandals,  352. 

Gentoo  code,  190. 

Ghebelins,   faction  of,  375,  4i5- 

Gifts,  law  of,  in  Germany,  1152. 

Girondists,   execution  of,  618. 

Glencoe,  massacre  at,  739. 

Gnaeus  Gemicus,  315. 


Godfrey  de  Bouillon,  576. 
Golden  Bull  of  Hungary,  506. 
Golden  Bull  promulgated  by  Charles 

IV,  480. 
Golden  Horde  in  Russia,  387. 
Goldene    Handveste,    charter    called, 

533. 
Golden  League  in  Switzerland,  542. 
Gorm  the  old  of  Denmark,  451. 
Goths,  350,  562. 
Goths  in  Spain,  421. 
Government,  general  purposes  of,  'jd. 
Granada,   conquest  of   by   Spaniards, 

434. 
Great  privilege  sanctioned  by  Mary, 

Dutchess   of    Holland,   513. 
Greece,  275. 

Greece,  Roman  conquest  of,  326. 
Greek  governments,  925. 
Gregorian   Code,  340. 
Gregory  III,  Pope,  z^Z,  479- 
Guardianship,  French  law  of,   11 17. 
Guardianship,   German   law  of,   1172, 
Guelphs,  faction  of,  375,  415. 
Guelphs    and    Ghebellines,    strife    of, 

375,   415. 
Guests,  Hindoo  laws  relating  to,  1017. 
Guilds,  Chinese,  241. 
Gunpowder,    effects    of,    on    military 

organization  of  France,  586. 
Gunpowder,  advent  of,  in  Germany, 

482. 
Gustavus   Adolphus,  459. 
Gustavus  Vasa  of  Sweden,  457. 

Haidah  Indians,  94. 
Han  dynasty  in  China,  210. 
Hanseatic  League,  456,  513,  481. 
Hanseatic    League,    Dutch    cities    in, 

513. 
Hanseatic  League,  disruption  of,  487. 
Hanse  towns,  English  trade  with,  710. 
Hapsburgs,  accession  of«  to  Spanish 

throne,  439. 
Hargreaves     invention     of     spinning 

jenny  by,  755. 
Harmodius       and       Aristogiton      of 

Athens,  287. 
Heirs,  designation  of  in  China,  1093. 
Heirs,  German  law  of  right  to  por- 
tions notwithstanding  will,   1177. 
Heirs,  German  law  of  worthiness  to 

inherit,    1177. 
Heirs,  rights       of       under       Magna 

Charta,   1179. 
Heliasts  or   Heliosa  of  Athens,  289. 
Helots.  Spartan  serfs,  '2']']. 
Helvetian   society,   544, 


INDEX 


1209 


Henry  I  of  England,  678. 

Henry  H  of  England,  680. 

Henry  HI  of  England,  686. 

Henry  IV  of  England,  696. 

Henry  V  of  England,  697. 

Henry  VII   of   Englnd,  704. 

Henry  VIII  of   England,  705. 

Henry  IV  of  France,  591. 

Hengest  and  Horsa,  654. 

Heptarchy  established  in  England, 
663. 

Heresey,  executions  for,  in  France, 
589. 

Hersey,  execution  of  Wm.  Santre 
for,  646. 

Hersey,  executions  for  in  Massachu- 
setts, 812. 

Hermit  life  enjoined  on  old  men  by 
Code  of  Manu,  1026. 

Hertogen,  Saxon  leaders,  655,  660. 

Hipparchus  of  i^-thens,  287. 

Historical  data,  scantiness  of,  924. 

Holland,  512. 

Hollographic  wills,  French  law  con- 
cerning,  1 126. 

Holy  office  established  in  Spain,  434. 

Holy  Roman  empire  in  Germany,  475. 

Holy  Roman  emperor,  election  of, 
476,  480. 

Homage,  how  rendered,  368. 

Homestead  laws  of  the  United 
States,  885. 

Homicide,  compensation  for  among 
the  Franks,  569. 

Hottentots,  90. 

House  of  Commons  of  British  Par- 
liament, 687,  690,  759,  775- 

House  of  representative*  of  the 
United  States,  1188. 

Hundred  Years  war,  583. 

Hundreds,  organization  of,  in  China, 
1094. 

Hungarian   Parliament,   511, 

Hungary,   early  government  of,   506. 

Huns,  invasion  of  Europe  by,  470. 

Hunters,  liabilities  of  in  Germany, 
1 1 50. 

Husband  and  wife,  laws  of  France 
governing  relations  of,  11 16. 

Husband  and  wife,  laws  of  Germany 
governing  relations  of,  1169. 

Husband  and  wife,  laws  of  the  Uni- 
ted States  governing  relations  of, 
901. 

Husband  and  wife,  code  of  Manu, 
1048. 

Hwangti,  Chinese  Emperor,  204,  208. 


Hyksos,    Shepherd    kings    of    Egypt, 

126. 
Hypotheca,  German  law  of,  1164. 

laroslaf  of  Russia,  385. 

Ibn  Hanbal,  Treatise  of,  on  Moham- 
medan  law,    168. 

Illinois,  constitution  of,  844. 

Images,  worship  of,  42,    156. 

Imam,  274, 

Imperial  Clan  of  China,  223. 

Imperial  Court  of  China,  223. 

Imperial  Council  of  Russia,  393. 

Inca  of   Peru,   108. 

Incarnations  according  to  code  of 
Manu,    1061. 

India,  Early  inhabitants  of,   171. 

India,  act  of  24  and  25  Vict.,  relating 
to,   761. 

India,  British  rule  in,  782. 

Indians  of  North  America,  85,  809. 

Indians  of  South  America,  916. 

Indulgences,  sale  of  by  Roman 
Church,   483. 

Injury  iby  unlawful  act,  German  law 
concerning,    11 58. 

Inheritance,  Babylonian  laws  of,  999. 

Inheritance,  Burmese  laws  of,  188. 

In'heritance,  Chinese  laws  of,  1093. 

Inheritance,  English   laws   of,   778. 

Inheritance,  French  laws  of,  1122. 

Inheritance,  German   laws   of,    11 72. 

Inheritance  of  political  power  in 
Germany,  480. 

Inheritance,  Hebrew  laws  of,  146. 

Inheritance,  Hindoo  laws  of,  969, 
1050. 

Inheritance  of  Irish  lands,  778. 

Inheritance,  effects  of  laws  of,  in 
Italian  cities,  411,  967. 

Inheritance,  Mohammedan  laws  of, 
160. 

Inheritance,  early  Roman  law  of, 
33S,    1072. 

Inheritance,  Salian  Franks  law  of, 
356. 

Inheritance,  United  States  law  of, 
903. 

Inheritance,  political  effects  of  laws 
of,  966. 

Initiative  and  Referendum  in  Swit- 
zerland,  553,  555. 

Innkeepers,  liabilities  of,  in  France, 
1 133. 

Innkeepers,  liabilities  of,  in  Ger- 
many, 1155. 

Innocent  I,  Pope,  363. 

Inquisition   in    America,  913. 


I2IO 


INDEX 


Inquisition   in   France,   590. 

Inquisition    in    Portugal,   436. 

Inquisition  in  Spain,  434. 

Inns  of  China,  216. 

Insolvent  debtors,  laws  of  XII  tables 

concerning,   1003. 
Institutes  of  Justinian,  1066. 
Insurance  in  the  United  States,  872. 
Interdict,  Effect  of  religious,  381. 
Interdict  in  Roman  law,  1079. 
Interest    allowed    by    Chinese    Code, 

1 100. 
Interest    allowed    by    German    Code, 

1 149. 
Interest  allowed  by   Code  of  Manu, 

1041. 
Interrex,  Roman,  304. 
International  Postal  Union,  558. 
'  Inventions    in    England    in    reign    of 

Geo.  Ill,  775. 
Investiture    of    Hindoo    child    with 

mark  of  his  class,   loio. 
Investitures,  War  of  the,  411,  479. 
Ireland,  union  of,  with  Great  Britain, 

739,  754. 
Irish  Parliament,  support  given  King 

James  by,  739. 
Iroquois   confederacy,  87. 
Iroquois,   leagues    of    colonists    with, 

811,   814. 
Ispravniks,  Russian  officers,  396,  400. 
Italy,  410. 

Italy,  Government  of,  417. 
Ivan  III  of  Russia,  388. 
Ivan  IV  of  Russia,  the  terrible,  388. 
lyeyasu,  shogun  of  Japan,  257. 

Jacob,  Family  of,  in  Egypt,  127. 
Jacobin  Club  in  France,  606,  613,  620. 
Jamaica,  setlement  of,  917. 
James  I  of  England,  717. 
James  II  of  England,  yz2. 
Jamestown,  settlement  of,  788. 
Janissaries,  Turkish  troops,  270. 
Japan,  constitution  of,  262. 
Japan,  early    history   and    theory   of 

government  of,  250. 
Japan,  new    classification    of    society 

in,  261. 
Japan,  opening  of,  to   foreign  trade, 

257. 
Japan,  Revolution  in,  200. 
Java,   acquisition   of,   by  the    Dutch, 

515. 
Jeffreys,  bloody  assizes  of,  72>3- 
Jenghiz  Kahn,  conquest  of  China  by, 

215. 
Jerusalem,  taking  of,  576. 


Jews,  murders  of,  under  Edward  I, 
689. 

Jews,  persecution  of,  in  Spain,  434. 

Jimmu  Tenno  of  Japan,  250. 

Joan  of  Arc,  586,  698. 

John,   King  of   England,  683. 

Joint  family  of  Celts,  657. 

Joseph,  policy  of,    127. 

Judea,   143. 

Judea,  Kings  of,   151. 

Judges,  Babylonian,  Punishment  of 
for  changing  a  judgment,  994. 

Judges,  Chinese,  punishable  for  un- 
just judgments,   11 12. 

Judges,  French,  decisions  required 
of,    1 1 14. 

Judges,    English,   given    life    tenure, 

744. 
Judges,  Roman,  ZZ^,  1003,  1076. 
Judicial   Committee   of    Privy   Coun- 
cil of  Great  Britain,  770. 
Judicial  Functions,  55. 
Judicial  officers  in  United  States,  826, 

837,  1 195. 
Juris  consults,  Roman,  334. 
Jury,  trials  by,  in  England,  667. 
Jury,  trials  by,  in  Italy,  418. 
Jury,  trials  by,  in  United  States,  910. 
Jus  in  Roman  law,  307. 
Jus  Gentium  of  Roman  law,  335. 
Jus  Naturale  of  Roman  law,  Z27. 
Justice,  definition  of,  in  Institutes  of 

Justinian,   1066. 
Justice,     Administration     of,     under 

Code  of  Manu,  103 1. 
Justinian,    Compilation    of    laws    by, 

341. 
Justinian,  Institutes  of,  341. 
Justizoi  of  Aragon,  powers  of,  429. 
Justiza  of  Aragon,  execution  of  the, 

434. 
Jutes,  advent  of,  in  England,  654. 

Kaimakams,  Turkish  officers,  272. 
Kambalu,   Chinese  city  described  by 

Marco  Polo,  214. 
Kabbeljaus    and    Hoeks,    factions    in 

Holland,  513. 
Kang-hi,  Chinese  emperor,  219, 
Kent,  Saxon  customs  in,  654. 
Khadijah,   wife   of   Mohammed,   156. 
King  Philip's  war  in  New  England, 

803,  807. 
Kings,     Hindoo,     attributes,     powers 

and  duties  of,  1030. 
Kings,    Hindoo,    must   respect   Brah- 

mans,  1031. 
Kings  of  Early  Rome,  303. 


INDEX 


I2II 


King«  of  Early  Rome,  final  expulsion 

of,  311. 
Knighthood,    manner    of    conferring, 

573. 
Knighthood,  obligations  assumed  by, 

574. 

Knights  Templar,  580. 

Kolorian  inhabitants  of  India,  173. 

Koniaga  Indians,  customs  of,  84. 

Konstaffel  of  Zurich,  332. 

Koraish,  Arab  clans,  156. 

Koran,   156. 

Koran,  punishments  under  the,  159, 
162. 

Koran,  swines  flesh,  eating  of  pro- 
hibited by,  165. 

Koran,  usury  condemned  by,  165. 

Kouan  Kouen,  Chinese  robbers,  240. 

Kublai,  Mongol  emperor  of  China, 
213. 

Kublai,  invasion  of  Japan  by,  256. 

Labor    organizations    in    the    United 

States,  875. 
Laconia,   settlement  of,  275. 
La  Fayette,  612,  614,  632. 
Land,     American     Indians     had     no 

conception  of  title  to,  962. 
Land,  sale  of,  in  Babylon.  142. 
Land,  lease  of,  in  Babylon,  996. 
Land,  Boc  and  Folk,  in  England.  661. 
Land,  acquisitions   of,   by   Church   of 

Rome,  414. 
Land,  Egyptian  laws,  127. 
Land,  titles  to,  in  England,  972,  978. 
Land,  holdings    of,    in     England    in 

time  of  Harold,  672. 
Land,  holdings     of     the     Church     in 

Germany,   493. 
Land  laws  of  Germany,  496,   1160. 
Land,  village     system     in     Germany, 

492. 
Land,  laws     of     ancient     Gauls     and 

Salian   Franks,  563. 
Land,  Irish  titles  to,  742. 
Land,  Hebrew   Jubilee,    146. 
Land  in    Peru,    no. 
Land,  early    Roman    tenure    of,    308, 

314. 
Land,  Roman  use  of  public,  314. 
Land,  Russian  tenure  of,  403. 
Land,  Saxon  tenure  of.  655,  887. 
Land  laws,  962. 

Land,  early    tenure     of     in     Scandi- 
navia, 449. 
Land.  Spanish  grants  of,  in  America, 

919. 
Land  laws  of  Sparta,  280. 


Land,  laws  of  the  United  States,  36, 
885. 

Land,  conveyance  of  title  to,  in 
United  States,  964, 

Land,  average  holdings  of,  in  prin- 
cipal countries,  779. 

Landgemeinde,  Swiss  popular  As- 
sembly, 535. 

Latin-American  States,  921. 

Latin  languages,  use  of,  in  English 
courts  abolished,  750. 

Latin  cities,  Roman  power  over,  322. 

Laud,  William,  archbishop  of  Canter- 
bury, 720. 

Laupen,  battle  of,  534. 

Law,  'financial  scheme  of,  598. 

Law,  common,  of  England,  785,  898. 

Laws,  Ancient  Assyrian  promulgated 
in  the  name  of  Asshur,   141. 

Laws,  Babylonian,    139,   994. 

Laws  of  Draco,  282. 

Laws  of  Egypt,   132. 

Laws  of  France,    1114. 

Laws  of  Germany,    1146. 

Laws  of  India,   1005. 

Laws  of  Jews,   144,   148. 

Laws  of  Lycurgus,  280. 

Laws  of  Norway,  468. 

Laws  of  Russia,  407. 

Laws  of  Salic  law  of  inheritance, 
356,  565. 

Laws  of  Scandinavia  in  time  of 
Cnut,  451. 

Laws  of  Solon,  284. 

Laws  of  Twelve  Tables  of  Rome, 
316,   1002. 

Laws,  state,  in  the  United  States, 
884. 

Laws  of  the  United  States,  64. 

Laws,  methods  of  originating,  950. 

Laws,  modes  of  enacting  at  Rome, 
312,  319,  ^Z7. 

Laws,  purposes  of,  950. 

Lawyers   in   Burmah,   194. 

League  of  colonies  proposed  by 
Penn.,  814. 

Leases,  French  law  of,  1135. 

Leases,  German  law  of,  1153. 

Leet,   Saxon   serfs,  659. 

Legislatures,  constitutional  restric- 
tions of  powers  of  American,  857. 

Legislative   expedients,   43, 

Legislative  expedients  at  Rome,  325. 

Leo,  Pope,  358,  363. 

Leon,  428. 

Leonidas,  Spartan  general,  291. 

Leuctra,   battle  of,   298. 

Letters,  Chinese  invention  of,  924. 


1212 


INDEX 


Lexington,   Battle   of,  821. 

Lex  Talionis,  in  Babylon  and  Judea, 

148,   954,    lOOI. 
Lex  Talionis,   in  Mohammedan  law, 

162. 
Lex    Talionis    among   early    Saxons, 

659. 

Liberty    of     person    guaranteed     by 

Magna  Qiarta,  1183. 
Li-Ki,  Book  of  Rites,  Chinese  classic, 

207. 
Li  Yuen,  Chinese  emperor,  210. 
Llamas,    property    of    the    state    in 

Peru,  116. 
Loans,  French  law  of,   1137. 
Lodgment    by    debtor    of    money    or 

property  in  Germany,   1150. 
Lombards  in  Italy,  353. 
Lords,  British  House  of,  717.  775- 
Lost  property,  German  law  of,  1162. 
Lothair,  Excommunication  of,  380. 
Louis  XIV  of  France,   543,   594. 
Louis  XIV  of  France,       administra- 
tive functions  under,  595. 
Louis  XV  of  France,   599. 
Louis  XVI  of  France,  601,  613. 
Louis  XVI  of  France,  condemnation 

and  execution  of,  615. 
Louis  XVIII  of  France,  631. 
Louis  Napoleon,  637. 
Louis,   Philippe,  634. 
Louisiana  purchase,  832. 
Lower   Californians,   80. 
Luther,    Martin,    reforms    demanded 

by,  483. 
Lycurgus,  laws  of,  280, 

McMahon,  president  of  France,  642. 
Magna   Charta   of    King   John,   684, 

1 1 78. 
Magyars,    inroads    of,    into    France, 

570. 
Magyars,    inroads    of,    in    Germany, 

475. 

Maintenence  of  relatives,  German 
law  concerning,  1171. 

Maine,  grant  of,  to  Duke  of  York, 
798. 

Majority,  age  of,  in  France,  11 19. 

Majority,  age   of,   in   Germany,    1146. 

Mama  Oello  Huaco,  Peruvian  tradi- 
tion of,    107. 

Manco  Capac,  Peruvian  tradition  of, 
107. 

Manchu  conquest  of  China,  219. 

Mancipation  in  Roman  law,  310,  1069. 

Mandate,  German  law  of,   1154. 

Mandate,  Roman  law  of,  1074. 


Manners  and  deportment,  rules  gov- 
erning Hindoo,  1017. 

Manu,  Code  of,  783,  1005. 

Marat,  615,  617. 

Marathon,  battle  of,  291. 

Marcial,  Uprisings  led  by,  584. 

Marcomanni,  Irruption  of,  350. 

Marco  Polo,  visit  of,  to  China,  213. 

Marie  Antoinette,  execution  of,  615. 

Maria  Theresa  of  Austria,  490. 

Marius,  Roman  consul,  327. 

Marlbridge,  statute  of,  688. 

Marriage  contracts,  French  law  of, 
1131. 

Marriage  and  divorce  at  Athens,  286. 

Marriage  and  divorce  in  Babylon, 
997. 

Marriage  and  divorce,  Chinese  laws 
concerning,  1097. 

Marriage  and  divorce,  French  laws 
concerning,   11 15. 

Marriage  and  divorce,  German  laws 
concerning,    1167. 

Marriage  and  divorce,  Hindoo  laws 
concerning,   1015,   1050. 

Marriage  and  divorce,  Roman  XII 
Tables,  1005. 

Marriage  and  divorce,  Roman,  in 
time  of  Justinian,   1067. 

Marriage  and  divorce  at  Sparta,  280. 

Marriage  and  divorce  laws  of  the 
United   States,  892. 

Marriage,  feudal  incidents  of,  369. 

Married  women,  separate  property 
of,  under  Hindoo  law,  1053. 

Master  and  servant,  laws  of  France 
relating   to,    1136. 

Master  and  servant,  laws  of  Ger- 
many relating  to,  11 53. 

Master  and  servant,  laws  of  Moham- 
med  relating  to,   162. 

Master  and  servant,  laws  of  early 
Rome  relating  to,   1003. 

Master  and  servant,  laws  of  United 
States  relating  to,  905. 

Maryland,   Charter  of,  794, 

Mary,  Queen  of  England,  711. 

Mary,  Queen  of  Scots,  712. 

Massachusetts,  charter  and  settle- 
ment of,  792,  804. 

Massachusetts,    Constitution    of,   844. 

Massachusetts,  judgment  of  Kings 
Bench  annulling  charter  of  803. 

Matrimonial  Regime.  German  law 
of,   1 168. 

Mayors  of  the  palace  of  Prankish 
kings,  354,  5^6. 

Mediaeval   Europe,  349. 


INDEX 


1213 


Medicine,  practice  of  in  China,  1106. 

Mencius,  Chinese  philosopher,  Doc- 
trines of,  221. 

Menes,  King  of  Egypt,  121. 

Mercenaries,   Swiss,   543. 

Merovingian   dynasty,  354,  5^3- 

Merovingian  dynasty  in  Germany, 
472. 

Merton,  Statute  of,  688. 

Messengers,  Chinese,  Punishment  of 
for   delay,    1091. 

Mestisos  of  Mexico  and  South 
America,  916. 

Methods  of  acquiring  political  power, 
926. 

Mexican  Calendar,    105. 

Mexico,  ancient  inhabitants  of,  99. 

Mexico,  ancient  manufactures  of, 
105. 

Mexico,  ancient  markets  01,  105. 

Mexico,  ancient  money  of,  105. 

Mexico,  constitution  of,  921, 

Mexico,  revolt  of,  from  Spain,  916. 

Mexico,  Modern,  910,  920. 

Michael  Romanof  chosen   Czar,  391. 

Mikado   of   Japan,   shorn   of   power, 

254. 
Mikado  of  Japan,  restored  to  power, 

260. 
Milan   in  twelfth   century,   375. 
Militarism    Modern,  937. 
Military     despotisms,     establishment 

of,  927. 
Military  governments  in  India,  198. 
Military  organization   of    China,  236. 
Military    organization    of    Germany, 

503. 
Military  power  at  Rome,  310,  332. 
Miltiades  of  Athens,  293. 
Minamoto  family  in  Japan,  254. 
Mines  in  Peru,  property  of  the  Inca, 

III. 
Ming  dynasty  in  China,  219. 
Ministerial    accountability,   beginning 

of,  in  England,  740. 
Minors,      emancipation      of,      under 

French   law,    1 1 19. 
Minors,   Guardianship   under   Roman 

law,   1067. 
Minors,     German     law     concerning, 

1171. 
Mirs,  Russian,  383,  390,  393. 
Missouri,  constitution  of,  845. 
Mohammed,    155. 

Mohammedan  invasion  of  India,  180. 
Mojaves,  Indians,  94. 
Money,   Chinese   legal   tender,  under 

Kublai,  218. 


Money,  not  used  in  early  Rome,  308. 
Mongol  conquest  of  Russia,  z^y. 
Moors  in  Spain,  428. 
Monasteries,  364,  z"/^- 
Monasteries,    English    under    Henry 

eighth,  708. 
Monopolies,  control  of,  879,  908,  973. 
Monopolies,   given    by    Queen    Eliza- 
beth, 715. 
Monopolies,   abolition   of   except   for 

inventions,  717. 
Monopolies,      punishment       for      in 

China,  iioi. 
Morals,  public  regulation  of  private, 

40. 
Moral  law,  conceptions  of,  40. 
Moral  rules  of  Hindoo  code,  1018. 
Moral  debasement  at  Rome,  326,  329. 
Morgarten,  battle  of,  53i- 
Moriscos,  expulsion  of,  from   Spain, 

440. 
Moses,  144,  148,  928. 
Mormons  in  the  United  States,  863. 
Mortgages   in   China,   1095. 
Mortgages  in  France,  1142. 
Mortmain,  statute  of,  691. 
Movables,    German    law    concerning, 

1 162. 
Mourning,   Chinese  law  of,   1085. 
Mourning,  punishment  in   China   for 

failure  to   observe,   1102. 
Mudirs,  Turkish  officers,  272. 
Mughal  empire  in  India,  181. 
Muhamed  of  Turkey,  270. 
Municipal    organization    in    England, 

760. 
Murad  IV,  270. 

Mutesserifs,   Turkish   officers,  272. 
Mystic  wills,  French  law  concerning, 

1 126. 

Nafels,  battle  of,  535. 

Names,  Hindoo  rules  for,  loio. 

Napoleon  Bonaparte,  619,  622,  630. 

National  Assembly  of  France,  605. 

National  Convention  of  France,  615. 

Navajo  Indians,  94. 

Navarre,  425,  433. 

Necker,  French  minister,  601. 

Necromancy,  execution  of  John 
Stacy  for,  702. 

Negotiable  instruments,  German  law 
of,  1 157. 

Nemophylakes,  magistrates  of  Ath- 
^ens,  295. 

New  England  colonies,  social  condi- 
tions in,  808. 


I2I4 


INDEX 


New     Hampshire,     organization    of, 

798,  825. 
New  Jersey,  government  of,  805. 
New  York,  Dutch  settlement  of,  807. 
New    York,    Grant    of    to    Duke    of 

York,  798. 
New  Zealand,  native  tribes  of,  97. 
New  Zealand,  government  of,  yj^. 
Ngan-chah-sz,        Chinese        criminal 

jud^e,  235. 
Nicaea,  Council  of,  363. 
Nobility     abolished     in     Russia     by 

Peter,  392. 
Nobility  of  Russia  based  on  official 

station,  403. 
Nomes  of  Egypt,  121. 
Nomothetae  of  Athens,  295. 
Nootka   Indians,  94. 
Normans,    Settlement  of    in    France, 

570. 
North  Carolina,  Constitution  of  1776, 

834. 

Northmen  in   England,  665. 

Norway,  constitution  of,  486. 

Norway,  separation  of,  from  Sweden, 
469. 

Norway,  Wars  in,  455. 

Novation,  French  law  of,  1129. 

Novgorod,  Republic  of,  385,  388. 

Noxal  actions,  Roman  law  concern- 
ing, 1078. 

Oaths,  Judicial,  French  law^  concern- 
ing,   1 1 30. 

Oaths,  Mohammedan  punishment  for 
violation  of,  165. 

Oaths,  rules  of  Code  of.  Manu  con- 
cerning, 1041. 

Oblations  enjoined  by  Code  of 
Manu,  1017. 

Obligations,   Roman   law  of,    1072. 

Obligations,  German  law  of,  ii57- 

Obsequies,  Hindoo  law  concerning, 
1017. 

Octavius   Caesar,  331. 

Odin,  worship  of,  by  Scandinavians, 
452. 

Odoacar,  king  of  Ostrogoths,  352. 

Oekonomische  Gesellschaft  of   Bern, 

543. 
Officers,  pay  of  Roman,  326. 
Offices,   tenure   of,    in    states    of    the 

United   States,  836. 
Octal,   conquests   of,  213,  387. 
Oleg  of  Russia,  384. 
Oligarchies,     conversion     of     Italian 

free  cities  into,  412. 
Oligarchies  in  Poland,  495. 


Oligarchies,  Swiss,  543. 
Omayad  dynasty  in  Spain,  424. 
Ordeal,  trial  by,  in  Burmah,  195. 
Ordeal,  trial  by,  in  England,  668, 
Ordeal,  trial  by,  in  Scandinavia,  452. 
Ornaments  of  naked  savages,  86. 
Orphans,  good  treatment  of,  required 

'by  the  Koran,  159. 
Osman,   founder  of  Turkish  empire, 

267. 
Ostracism  at  Athens,  290. 
Ostrogoths,  kingdom  of,  352. 
Oviedo,  kingdom  of,  425. 

Pachomius,  founder  of  monastery  at 

Tabennae,  365. 
Pacific  islands,  inhabitants  of,  96. 
Pan-Hellenic    Congress    at    Corinth, 

Paradise,  description  of,  in  Koran, 
157. 

Paraphernalia,  French  law  concern- 
ing,  1 133. 

Parent  and  Child,  Laws  of  Twelve 
Tables   concerning,    1004. 

Parent  and  child,  laws  of  United 
States,  concerning,  901. 

Parental  authority,  8. 

Paternal  governments,   10. 

Paris,  Commune,  615. 

Parliament,  the  British,  686,  706,  745. 

Parliament,  the  Irish,  739. 

Parliament,  the  Long,  722. 

Parliament,  the  Rump,  729. 

Parliament  of  Italy,  417. 

Parliaments    of    France    law    courts, 

599- 

Partidas,  Sieto,  adoption  of,  as  Span- 
ish  law,  429. 

Partnership,  French  law  of,  1136. 

Partnership,  German  law  of,  1155. 

Partnership,  Roman  law  of,  1074. 

Patria  Potestas,  Roman  law  of,  1067. 

Patriarchal  Governments,  927. 

Patricians,  Roman,  303. 

Pausanius,   Spartan   General,  293. 

Payments,  French  law  concerning, 
1127. 

Peasants  war  in  Switzerland,  542. 

Peculium,  Roman  law  concerning, 
1070. 

Peking  Gazette,  22(i. 

Penal    Code    of    China,    1081. 

Penalties,  contracts  for,  in  Germany, 
1 150. 

Penance  and  expiation,  Hindoo  law 
of,    1057. 


INDEX 


1215 


Penn.,  William,   Charter  granted   to, 

798. 
Penn's    'Frame    otf    Government    of 

Pennsylvania,  800. 
Pennsylvania,   constitution     of,     835, 

849. 
Pepin,  357,  2,^3,  2^7- 
Pequot     Indians,     extermmation     of, 

806. 
Pericles,  294. 
Perioeci  of  Laconia,  277. 
Perkin,  pretender  to   British  throne, 

70A- 
Persia,  ancient  laws  of,  144. 
Persia,  recent  changes  in  government 

of,  153. 
Peter,  the  hermit,  576. 
Peter  of  Russia,  392. 
Personal   property,    definition    of,    in 

French   law,    1120. 
Personal  status,  laws  relating  to,  958. 
Personal  status,  Roman  law  of,  1066. 
Peru,  Ancient,  46,  107,  970. 
Peru,  Ancient,  Arts   in,   118. 
Peru,  Ancient,  Bridges,   117. 
Peru,  Ancient,  courts  of,    no. 
Peru,  x^ncient.  Educational  system  of 

115. 
Peru,  Ancient,     General     policy     of 

government   of,    108. 
Peru,  Ancient,  Government      of,      a 

business    establishment,    118, 
Peru,  Ancient,  Annual  hunts  in,  116. 
Peru,  Ancient,  Judicial     system     of, 

no. 
Peru,  Ancient,  Land  tenure  and  cul- 
tivation in,  no,  114. 
Peru,  Ancient,  Marriage    compulsory 

in,  US- 
Peru,  Ancient,  Military    organization 

of,   114. 
Peru,  Ancient,  Money  not     used     in, 

n8. 
Peru,  Ancient,  Posts  of,   116. 
Peru,  Ancient,  Products    of,    113. 
Peru,  Ancient,  RtDads   of,   113. 
Peru,  Ancient,  Spanish    conquest    of, 

913. 
Peru,  Ancient,  Tambos,     public     sta- 
tions  for  travelers  in   113. 
Peru,  Modern,    916. 
Pfaffen  Brief,  Swiss,  536. 
Philip    of    Burgundy,    rule    of    over 

Holland,   514. 
Philip  le  Bel  of  France,  580. 
Philip  III  of  Spain,  440. 
Phoenicians  in  Spain,  419. 
Pirates  in  West  Indies,  918. 


Pisistratus,  tyrant  of  Athens,  287. 

Phratries  in  Athens,  288. 

Platea,  battle  of,  292. 

Pleadings,  rules  of,  in  Gentoo  Code, 
192. 

Plebs,  in  early  Rome,  303,  305. 

Plebs,  manner  of  voting  and  powers 
of,  315. 

Plebs,  growth  of  powers  of,  315,  317. 

Plebs,  admission  of,  to  Roman  Sen- 
ate, 313. 

Pledges,  French  law  of,  1140. 

Pledges,  German  law  of,  1149. 

Pledges,  Hindoo  law  of,  1042. 

Plymouth  charter  for  New  England, 
790. 

Plymouth,  covenant  of  settlers  at, 
792. 

Podesta,  officer  of  Italian  republics, 
376. 

Poland,  constitution  and  organiza- 
tion of,  493. 

Poland,   partition    of,   495,   508. 

Polemarch  of  Athens,  282,  289,  290. 

Police  of  Russia,  400. 

Political  parties,  936. 

Political  parties  in  England,  731,  742. 

Political  power,  methods  of  acquir- 
ing, 926. 

Polyandry  practiced  by  Celts  of 
British  Isles,  657. 

Polygamy,  practiced  by  Americans, 
892. 

Polygamy,  practiced  by  Aztecs,  104. 

Polygamy,  practiced  by  Celts  of 
British   Isles,  657. 

Polygamy,  practiced  by  Chinese, 
1007. 

Polygamy  practiced  in  Egypt,   128, 

Polygamy,  practiced  in   Russia,  383. 

Polygamy,  practiced  in  Spain  under 
the   Omayads,  424. 

Polygamy,  practiced  in  Turkey,  269. 

Polygamy  allowed  by  the  Koran,  160. 

Polygamy,  restricted  in  Peru  to  the 
Inca  and  nobility,   114. 

Polygamy,  not  allowed  in  Greece, 
276. 

Pontifex  Maximus,  Roman,  312. 

Portugal,  establishment  of  independ- 
ence of,  431. 

Portuguese  in  Brazil,  914. 

Portuguese,  discoveries  of  the,  432. 

Portuguese,  first  visits  of,  to  Japan, 
257. 

Portuguese,    parliament,   431. 

Portuguese,  settlements  in  India,  182. 

Posadnic  of   Novgorod,  385. 


I2l6 


INDEX 


Postal   system   of   China,  216,    1103. 
Postal    system    of    England    in   1653, 

729. 
Postal  system  of  Ancient  Persia,  14I. 
Power  of  attorney,  French  law  con- 
cerning,   1 139. 
•  Praetor  peregrinus,  Roman  judge,  335. 
Praetors,  Roman,  issues  in  law  suits 

framed  by,  338. 
Prayers,    regular    required    by    Mo- 
hammed,   159. 
Prefects,  Roman,  324. 
Prescription    under    Burmese    Code, 

103,   104. 
Prescription     under     French     Code, 

1144. 
Prescrpition  under  Gentoo  Code,  192. 
Prescription     under     German     Code, 

1 148. 
Prescription  under  Roman  law,  1079. 
President  of  the  United  States,  elec- 
tion  of,  830,    1 193,    1199. 
Priesthood  in  India,   1044. 
Priesthood,  Jewish,  148. 
Priesthood,  Early  Roman,  304. 
Privilege,    abolition    of,   by    National 

Assembly  of  France,  607. 
Privileged  classes  in  China,  1088. 
Privileged  creditors,  French  law  of, 

1141. 
Procedure,   court,   in    China,    1108. 
Procedure,  court,  in  Egypt,  132. 
Procedure,  court,  in  England,  716. 
Procedure,    court    under    Code     of 

Manu,    1036. 
Procedure,    court,    early    Roman,    in 

civil  cases,   1002,   1080. 
Procedure    court,    early    Roman,    in 

criminal  cases,  309. 
Procedure,  court,  in  the  United  States, 

908, 
Procedure,   essentials   of,   59. 
Property,    Roman   laws   of,    1068. 
Prussia,  488. 
Prytanies,  Athenian  divisions  of  the 

year,  289. 
Psammetichus,  King  of  Egypt,   128. 
Pskof,  Republic  of,  386. 
Public  mess  at   Sparta,  278. 
Public    officers,    principles    applicable 

to  the  selection  of,  935. 
Public  regulation  of   families,   11. 
Public  regulation  of  private  morals, 

10. 
Public  Service  corporations  in  United 

States,  869. 
Punic  wars,  326. 
Punishments   in   Babylon,  994,    looi. 


Punishments,       Chinese,       graduated 

scale  of  and  redemptions  in  money, 

1082. 
Punishments,    Chinese    infliction    of, 

1087. 
Punishments,    Chinese   mitigation  of, 

1084,   1089. 
Punishments  under  Cnut,  669. 
Punishments,     exemption    of     Brah- 

mans  from  capital,   1047. 
Punishments  in  England,  under  Eliz- 
abeth, 715. 
Punishments      in      England      under 

George  I,  746. 
Punishments      in      England      under 

George   III   and   IV,   757. 
Punishments      in      England      under 

Henry  VIII,   707. 
Punishments,    Hebrew    law    of,    lex 

talionis,   148. 
Punishments,    Hindoo   law    of,    1045, 

1053- 
Punishments,    of    capital    crimes    in 

Rome,   1005,    1080, 
Punishments,  Mohammedan,  159,  162. 
Punishments,  in  Virginia  under  char- 
ter,   789. 
Punishments,  theories  of,  10,  951. 
Purification,  Hindoo  rules  for,   1060. 
Puritans  in  England,  713. 
Puritans  in  New   England,  795,  803. 
Puritans  in  British  Parliament,  718. 
Pyramids,  construction  of  the  great, 

at  Giza,  123. 
Quaestors,  Roman,  duties  of,  309. 
Quasi-contracts,  French  law  of,  1 130. 
Quasi-contracts,  Roman  law  of,  1074. 
Quia  Emptores,  statute  of,  691. 
Quipu,    records    of     Peru,    kept    by 

means  of,  113. 
Railroads   in   Germany,   502. 
Railroads,     construction     of     in     the 

United   States,  866. 
Raleigh,  Sir  Walter,  charter  to,  714, 

786. 
Ramses   II,  king  of   Egyt,   128. 
Ransom,    payment    of,    in     Babylon, 

995. 
Rape,  punishment  for,  in  China,  11 10. 
Real  estate,  definition  of,  in  French 

Code,  1 120. 
Referendum,     provisions     of    Swiss 

constitution   concerning,  553. 
Reformation  in  France,  587. 
Reformation  in  Germany,  483. 
Reformation  in  England,  707. 
Reforms  of   Stein  &  Hardenburg  in 

Germany,  496. 


INDEX 


1217 


Regimes,  contractual,  in  German  law, 

1 1 69. 
Regimes,  matrimonial,  in  German  law, 

1168. 
Registers,    Chinese,    of    persons    and 

families,   1092. 
Reich'srath  of  Austria,  510. 
Reichstag  of  Germany,  500. 
Reign  of  terror  in  France,  618,  623. 
Reliefs    incident    to    feudal    tenures, 

368,  6-]-]. 
Reliefs,  provisions  of  Magna  Charta, 

concerning,    1179, 
Religious  orders  in  Spain,  427. 
Religious  wars   in  Switzerland,  541. 
Representatives,  principles  governing 

the  selection  of,  935. 
Representative  governments,  931, 
Republics  of  Cordova  and  Seville  in 

Spain,  423,  426. 
Republics  of  mediaeval  Italy,  374. 
Republic  established  in  Portugal,  448. 
Republic  established  in  Spain,  445. 
Revenue  of  Hindoo  kings,   1035. 
Revolution,  French,  606,  of  1830,634, 

of  1848,  635. 
■Revolutionary    war    in    the    United 

States,  821. 
Rhenish  ccm federation  of  cities,  480. 
Rhode  Island,  settlement  of,  795. 
Ricared,  King  of  Visigoths,  421. 
Richard  I  of  England,  682. 
Richard  II  of  England,  694. 
Richard  III  of  England,  702. 
Richelieu,  Cardinal,  593. 
Rich  Veda,  172. 
Riparian    owners,    rights    of,    under 

French  law,  1121. 
Roads,    Chinese,    under    Mongol    dy- 
nasty, 216. 
Robbery,    city    and    governor    liable 

for  in  Babylon  if  robber  escaped, 

995. 
Robespierre,  619,  623. 
Rolf,    Settlement    of,    in    Normandy, 

570. 
Roman  Empire,  limits  of,  349. 
Rome,  early  history  of,  301. 
Rome,  extension   of   power  of,   over 

Latin   cities,   2>'22. 
Rome,  pay  of  officer-s  of,  326,  329. 
'Rome,  social  demoralization  of,  2i^, 

329. 

Roman  kings,  305. 

Roman  law.  development  of,  334. 

Rothari,  king  of  Lombards,  353. 

Rothari.  laws  of,  344, 

Rurik,  founder  of  Russian  state,  384. 


Russia,  z^2. 

Russia,  Council    of    State    of,    394. 

Russia,  Courts  of,  397- 

Russia,  Holy  Synod  of,  395. 

Russia,  Ministers    and    bureaus    of, 

395. 

Russia,  Police  system  of,  400. 

Russia,  Senate,  head  of  judicial  sys- 
tem, 395,  397- 

Sacrifices,  Human,  by  ancient  Druids, 
560. 

Sacrifices,  Human  by  ancient  Mexi- 
cans,  103. 

St.  Gallen,  537. 

Saint  Just,  623. 

Saint  Bartholomews  eve,  Massacre 
of,  590. 

St.  Stephen  of  Hungary,  505. 

Saladin,    Recovery   of   Jerusalem  by, 

577.. 

Salamis,  Battle  of,  292. 

Sales,  French  law  of,  1134. 

Salian  Franks,  354,  363. 

Salian  Franks,  laws  of,  356,  365. 

Salt  department  of  Chinese  govern- 
ment, 11Z7- 

Sancho,   King  of   Navarre,  425 

Sangha,   Buddhist  society,   178, 

Sanhitas,  Vedic,   176. 

Santa  Hermandad,  Confederation  of, 

Sapienza,   Turkish  victory   ofiF,   268. 

Saracens  in  Spain,  422. 

Saxons,  Advent  of  in  England,  654. 

Saxons,  Monogamists,    657. 

Scandinavia,  450. 

Scholars,  Instruction  and  conduct  of 

Hindoo,  1013. 
Schools  in    the     American     colonies, 

812. 
Schools  of   Charlemagne,   570. 
Schools  in  China,  210,  221. 
Schools  in   Denmark,  466. 
Schools  in    Egypt,    129. 
Schools  in    France,   637. 
Schools  in  Germany,  497,  505. 
Schools  in  Great  Britain,  77.1. 
Schools  in   Hungary.   511. 
Schools  in  Italy,  418. 
Schools  in   Norway,  468. 
Schools  in    Polytechnic   and    Normal 

of  France,  620. 
Schools  in    Portugal,  448. 
Schools  in  Russia,  397,  406. 
Schools  in    Spain,    446. 
Schools  in    Switzerland,    550. 
Schools  in   Turkey,  censorship  over, 

271. 


I2l8 


INDEX 


Schools  in  United  States,  856,  891. 

Schultheis   of   Bern,  534. 

Schwitz,   charter  of,   527. 

Scotland,  crown  of,  given  to  Wil- 
liam and  Mary,  739. 

Scotland,  union  of,  with  England, 
745. 

Scythians,  ancient  customs  of,  382. 

Scythians  in  India,  179. 

Scythians  in  Scandinavia,  451. 

Security,  giving  of,  in  Germany, 
1 165. 

Sempach,   battle   of.   535. 

Sempacher  Brief,  536.    • 

Senate,   Athenian,  284. 

Senate,  Roman,  composition  and 
functions   of,  305,  313,  321,  333. 

Senate,  Roman,  growth  of  power  of, 
305,  309,  313,  321. 

Senate,  Roman,  changes  in,  made  by 
Caesar,  330. 

Sequestration,  French  law  of,   1138. 

Serfs,  attached  to  the  soil  by  Boris 
Gudenof,  391. 

Serfs,  in    Hungary,    507. 

Serfs,  liberation  of   Russian,  393. 

Serfs,  in  France,  580. 

Servants  of  Hindoo  kings,  rules  re- 
lating to,   1034. 

Servetus,  Michael  burning  of,  542. 

Service   for  debt  in   Babylon,  997. 

Servitudes,  French  law  of,  1122. 

Servitudes,  German  law  of,  1163.^ 

Servius  Tullius,  Rornan  institutions 
under,  309, 

Seven  years   war,  442,   749, .  814. 

Seville,   Republic   of,  426. 

Sha  Jahan,  Emperor  of  India,  182. 

Shiek-ul-Islam  of  Turkey,  271, 

Shi  King,  book  of  odes,  Chinese  clas- 
sic, 207. 

Shikken,  Japanese  officer,  255. 

Ships,   English,   in   1582,  7116. 

Shogun,  Jaipanese  office  of,  255. 

Shu  King,  Chinese  book  of  history, 
207. 

Sieta  Partidas,  429. 

Simmel,  pretender  to  English  throne, 
703. 

Sieyes,    Abbe,   626. 

Slander,    penalties    for,    in    Babylon, 

998. 

Slavery  of  Aztecs  of  Mexico,   loi. 

Slavery  in   Babylon,  997,   1000. 

Slavery  in    Brazil,   915. 

Slavery  abolition  of,  in  British  col- 
onies,  759. 


Slavery,  abolition  of,  in  Chile  and 
Argentina,  922. 

Slavery,  abolition  of,  in  England, 
672,  716. 

Slavery  in  China,  242. 

Slavery  among  the  Franks,  565. 

Slavery,  abolition  of,  by  France,  607. 

Slavery  in  Gaul  under  the  Romans, 
561. 

Slavery,  among  early  Greeks,  283. 

Slavery,  Hebrew  law  of,   141. 

Slavery,  absence  of,  in  India,  179. 

Slavery,  abolished    in    Portugal,    447. 

Slavery  in  Rome,  316,  324,  342,  1066. 

Slavery  among   the    Saxons,   661. 

Slavery  abolished   in   Sweden,  456. 

Slavery  in  West  Indies,  914. 

Slavery,  superseded  by  feudalism, 
370. 

Slavery,  abolition  of,  in  United 
States,   831,   905. 

Slaves,  burial  of,  with  masters  in 
Japan,  252. 

Slaves,  liberated  by  Louis  the  Quar- 
reler,  580. 

Slaves,  first  importation  of,  into  Vir- 
ginia, 790. 

Slavs  of  Russia,  383. 

Social  conditions  at  Rome  at  its 
zenith   of   power,   324. 

Social  war,  The,  in  Italy,  327. 

Socialism   in   China,  211. 

Solon,  laws  of,  284. 

Somerset,  execution  of  duke  of,  710. 

Sorcery,  trial  and  punishment  for, 
in  Babylon,  994. 

South  America,  discovery  of,  by  Co- 
lumbus, 913. 

South  Sea  Company,  organization  of, 
747. 

Spain,  early   inhabitants   of,  419. 

Spain,  loss  of  population  of,  from 
wars,  441. 

Spain,  Roman  rule  in,  419. 

Spanish  dominion  in  America,  913, 
916. 

Sparta,  government    of,    276. 

Sparta,  military  organization  of, 
277,  281. 

Sparta,  senate  of,  277. 

Specialization   in   industry,   54. 

Stamp   Act,   British,  817. 

Star  Chamber,  court  of,  sanctioned 
by  Parliament,  704. 

Star  Chamber,  court  of,  abolished, 
722. 

Starosta,  Russian  magistrate,  389, 
402. 


INDEX 


1219 


Starschina,  Russian  officer,  402. 
State     constitutions     in    the     United 

States,  834. 
States,  limitations  on  powers  of,  by 

U.  S.  constitution,   1192. 
States  General  of  France,  summoned 

by  Philip  le  Bel,  582. 
States  General,  of  France,  meetings 

of,  584,  591,  603. 
States  General  provincial,  in  France, 

594. 
States  General,  of  Holland,  514. 
State    officers,    election    and    appoint- 
ment of,  in  United  States,  836. 
State   statutes   in  the  United   States, 

889. 
Status,   personal,    in    Roman    empire, 

342. 
Status,  personal,  generalizations  con- 
cerning, 958. 
Statutes  of  the  United  States,  887. 
Statutes  of  Great  Britain,  756. 
Statute  of  frauds,  975. 
Stephen,  King  of  England,  679. 
Storthing,      Norwegian      legislature, 

468. 
Strategi,  Athenian  general-s,  289. 
Students,    Brahman,    instruction    of, 

1013. 
Subrogation,    French    law    of,    1128, 

1140. 
Sudras,  duties  of,   1006. 
Suevi,  352. 

Suffrage  in  United  States,  840. 
Suleyman  of  Turkey,  268,  270. 
Sulla,  with  legions  at  Rome,  327. 
Sunna,  Mohammedan  law,  168. 
Sunnites,  sect  in  Turkey,  273. 
Supreme     Court     of     Judicature     in 

England,  ^(yj. 
Sureties,     French     law     relating    to, 

1 132. 
Sureties,     Hindoo    law     relating    to, 

1042. 
Sureties,    German    law    relating    to, 

1 1 57. 
Sureties,       provisions       of       Magna 

Charta,    concerning,    1180. 
Suttee,  Hindoo  Practice,  183. 
Suy  dynasty  in  China,  210. 
Swabian  confederacy,  534. 
Sweden,  constitution  of,  467. 
Sweden,  separation  of  Norway  from, 

469. 
Swiss  confederation,  articles  of,  529, 

540. 
Swabian  league,  534. 
Switzerland,  527. 


Switzerland,  constitution  of,  548,  555. 
Switzerland,   invasion  of,  by   French 

under  Napoleon,  544. 
Switzerland,   unique    development   of 

governmental  system,  556. 

Taboo  among  Pacific  Islanders,  96. 
Ta-hio,  Chinese  classic,  221. 
Taira  family  in  Japan,  254. 
Tai-tsung,   Chinese   emperor,  210. 
Tang  dynasty  in    China,  210. 
Tanist,  elected  by  Celts,  658. 
Tarquin,   expulsion    of,    from   Rome, 

311. 
Tartar  conquest  of  China,  219. 
Taxation    of    American    colonies    by 

England,  750,  816. 
Taxation,  British,  761. 
Taxation    in  China,  242,  1096. 
Taxation,  English,      under      William 

and  Mary,  740. 
Taxation  in  India,   186,   1035. 
Taxation  at   Rome   under   Augustus, 

Taxation,  generalizations  concerning, 
955.. 

Taxation,  United  States,  constitu- 
tional provisions  concerning,  1191, 
1200. 

Tea,  irnportations  of,  into  American 
colonies,  820. 

Telegraphs,  construction  and  opera- 
tion of,  868. 

Tenants,  liabilities  of,  in  Babylon, 
996. 

Tenji  Tenno,  Japanese  emperor,  254. 

Teusatski  of   Novgorod,  386. 

Teutonic  Knights,  priestly  order  of, 
481,  488. 

Texas,  annexation  of  to  United 
States,  832. 

Theft,  Roman  law,  1075, 

Tezcuco,    courts    in,    loi. 

Thegns,  Saxon,  660. 

Theocratic  governments,  927. 

Themistocles  of  Athens,  291,  293. 

Theodoric,  King  of  the  Ostrogoths, 
352. 

Theodosian   Code,  340. 

Theseus,  Athenian  leader,  2^2. 

Thesmothetae,    Athenian,   295. 

Thiers,  M.,  634,  642. 

Thirty  years  war  in  Germany,  159, 
487,   515,   542. 

Thirty  years  war,  participation  of 
Sipain  in,  440.  • 

Thlinkeet  Indians,  customs  of,  84, 

Thomas-a-Becket,  681. 


1220 


INDEX 


Thor,  worship  of,  452. 
Thothmes  III,  King  of  Egypt,  127. 
Thralls,  Saxon  slaves,  659. 
Tibeto-Burman  inhabitants  of   India, 

173. 
Time,  Chinese  computation  of,  1090. 
Timur,  Emperor  of  China,  218. 
Timur,  conquest  of  India  by,  181. 
Timur  in  Turkish  empire,  268. 
Tlascak,  Government  of,  99. 
Toltecs  of  Mexico,  human  sacrifices 

unknown  among,   104. 
Torture  employed  in  trials  by  Druids, 

560. 
Torture,  Chinese  instruments  of,  and 

use  of,  1086. 
Torture  employed  by  the  Inquisition, 

436. 
Torture,  exemption  of  Chinese  priv- 
ileged classes   from,   mi. 
Towns  of  France,  581. 
Towns  and  Townships,  organization 

of  in  the  United  States,  855. 
Transmigrations     according     to     the 

Code  of  Manu,  1061. 
Treason  in  China,  1087,  1104. 
Treason,  executions  for,  under  Eliza- 
beth, 712. 
Treason,  punishment  of,  951. 
Treasury,  control  of  Roman,  333. 
Trespasses  l>y  cattle,  Code  of  Manu, 

1044. 
Tribal  organizations,  86. 
Tribal  organizations  of  Celts,  653. 
Tribes,   Free   German,  470. 
Tribes  of  India,  171. 
Tribes,  early  Roman,  303,  316. 
Tribes,  unorganized,  80. 
Tribunes,   Roman,   creation   of  office 

of,  315. 
Tribute     imposed     by     Saracens     in 

Spain,  422. 
Tribute  of  English,  King  John  to  the 

Pope,  683. 
Tripoli,   war  of  United   States  with, 

831. 
Trusts,  Roman  law  of,  1071. 
Tsung-tuh,    Chinese   viceroy,   234. 
Tuath,  Irish  village,  657. 
Tupac,  Inca,  maxims  of,  115. 
Turgot,  French  minister,  601. 
Turkey,  267. 

Tutors,  Roman  law  concerning,  1067. 
Twelve  Tables,  adoption  of  laws  of, 

at  Rome,  316. 
Tyler,  Wat,  Rebellion  under,  695. 

Uganda,  African  despotism,  91. 


Ulema,  body  of  doctors  of  Moham- 
medan law,  2'j'i. 

Ulrich  von  Hutten,  485. 

Unanimity  required  in  Polish  diet, 
495. 

Union  of  Denmark,  Sweden  and 
Norway,  456. 

Union  of   Sweden  and  Norway,  466. 

Union  of  Scotland  with  England,  745. 

United  colonies  of  New  England,  810. 

Universites  of  Belgium,  525. 

Universities  of  Great  Britain,  TJi. 

Universities  of  Germany,  foundation 
of,  4S2. 

Universities  of  France,  foundation 
of,  588. 

Universities  of  Hungary,  511 

Universities,   United   States,  813. 

University  of  Copenhagen  founded 
in    1478,   457. 

University  of  Cracow,  494. 

University  of  Oxford  and  of  Cam- 
bridge, 716. 

University  of  Harvard,  793. 

Uri,  charter  of,  from  Henry  VII, 
527. 

Usufructuary,  rights  of,  under 
French   law,    1121. 

Usufructuary,  rights  of,  under 
Roman  Jaw,  1069. 

Usury  in   England,  709. 

Usury  in  Germany,   1149. 

Usury,  Hebrew  law  of,   147. 

Usury,  prohibited  by  the  Koran,  165. 

Usury  under  laws  of  XII  Tables  of 
Rome,  1003, 

Vaisyas,  Hindoo  caste,  174. 

Vaisyas,  Hindoo  caste,  duties  of, 
1008,  1055. 

Valentinian,   340. 

Valis,  Turkish  governors,  272. 

Vandals,  252. 

Variagi,  384. 

Vassals,  feudal,  obligations  of,  368. 

Vaudians,  massacre  of,  590. 

Vedas,  rules  concerning  the  reading 
of,  ion,  1020. 

Vehmgericht  in  Germany.  481. 

Venezuela,  Capital  punishment  abol- 
ished in,  922. 

Venezuela,  settlement  of,  917. 

Venice,  government  of,  zi^- 

Vetche  of  Novogorod,  385. 

Veto  of  governor  on  state  laws  in 
United  States,  844. 

Viatka,  Republic  of,  386. 

Viceroys,  Chinese,  234. 


INDEX 


1 22 1 


Victor  Emanuel,  King  of  Italy,  415, 

417. 

Vikings,  appearance  of  in  England, 
359. 

Villac  Vmu,  high  priest  of  Peru,  108. 

Villages,  government  of,  in  China, 
240. 

Village  system  in  Germany,  491. 

Village  system  in  India,  185. 

Villeinage  under  the  feudal  system, 
370. 

Virginia,    Charter    for,    y^j. 

Virgins  of  the  Sun  in  Peru,  109. 

Visigoths,  352,  562. 

Visigoths   in   Spain,  357. 

Vladimir  of  Russia,  384. 

Vladimir  II,  of  Denmark,  453. 

Voievod,  Russian  court,  389. 

Volost  assemblies,  402. 

Volost,  group  of  Russian  villages, 
402. 

Volost,  courts,  398. 

Voters  in  England,  698,  760. 

Voters,  qualifications  of,  in  the  Uni- 
ted States,  840. 


Wager  of  battle,  trial  by,  677. 
Wang-ngan-Chi,      Chinese      socialist, 

211. 
War,  conduct   of,   by   Hindoo   kings, 

1033. 
War  of  the  Spanish  succession,  813. 
War  of  the  Roses,  698. 
War  between  England  and  the  Uni- 
ted States,  of  1812,  831. 
War,  Civil  in  the  United  States,  1861 

to  1865,  833. 
War,  between  the  United  States  and 

Mexico,  832. 
Wardships,  feudal  incidents  of,  369. 
Wardshi»ps,     provisions     of      Magna 

Charta  concerning,   1179,   1183. 
Warranty,  French  law  of,  1134. 
Warwick,  the  king-maker,  701. 
Washington,  George,  828. 
Washing  before  prayers  enjoined  by 

the   Koran,    166. 
Wealth,  distribution  of,  in  England, 

777>- 
Wealth,    effects    of    transmission    of. 

by  inheritance,  968. 
Wealth,  unearned,  38. 
Wedgwood  potteries,  755. 
Westphalia,  treaty  of,  542. 


Weregeld,  penalty  for  killing  an- 
other, 656, 

Widows,  Hindoo,  forbidden  to  marry 
again,   1026. 

Widowers,  Hindoo,  allow^ed  to  marry 
again,    1026. 

Widowers,  rights  of,  guaranteed  by 
Magna    Charta,    1180. 

Wife,  rights  and  obligations  of,  un- 
der French  Code,  11 16. 

Wife,  rights  and  obligations  of,  un- 
der Code  of  Manu,  1049. 

William  of  Normandy,  conqueror  of 
England,  575,  673. 

William  IV  of  England,  759. 

William  and  Mary  of  England,  734, 
739. 

William  and  Mary  of  England,  char- 
ter of  Mass.  issued  by,  804. 

Williams,  Roger,  banishment  of,  795. 

Wills,  French  law  of,  1124. 

Wills,  German   law   of,   1174. 

Wills,  Roman   law  of,   ic^o. 

Wine-sellers  in  Babylon,  liabilities  of, 
997- 

Witan,  Saxon  council,  661. 

Witchcraft,  Burmese  law  concerning, 
196. 

Witchcraft,  executions  for  in  Eng- 
land, 698. 

Witnesses,  rules  of  Code  of  Manu 
concerning,   1039. 

Wives,  rights  of,  in  China,  1097. 

Women,  status  of  in  China,  242. 

Women,  Hindoo  rules  of  dependence 
of,  1025. 

Women,  .  seclusion  of  Mohammedan, 
162. 

Woo  How,  Chinese  empress,  211. 

Written  language,  invention  of,  924. 

Wu  Wang,  Chinese  emperor,  206. 

Yaghan  Indians  of  Terra  del  Fuego, 

80. 
Yang  keen,  Chinese  emperor,  210. 
Yao,  Chinese  emperor,  204. 
Year,  the   Chinese,    1090. 
Yoritomo,  Shogun  of  Japan,  255. 
Yu,  Chinese  emperor,  205. 
Yuma  Indians,  94. 
Yussef,  King  of  Almoravids,  427. 

Zemstvos,  Russian  assemblies,  396. 
Zurich,  city  government  of,  ZZ'^- 
Zwingli,  Ulrich,  541. 


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